UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBBLARY 


AN  OUTLINE  OF 

THE  CLEVELAND 

CRIME  SURVEY 


W 


By  RAYMOND  MOLEY 


THE  CLEVELAND   FOUNDATION 


CLEVELAND'S  PROBLEM  OF  CRIME 

FOR  the  year  1920,  Cleveland,  with  approximately  800,000 
population,  had  six  times  as  many  murders  as  London, 
with  8,000,000  population.  For  every  robbery  or  assault 
with  intent  to  rob  committed  during  this  same  period  in  London 
there  were  17  such  crimes  committed  in  Cleveland.  Cleveland 
had  as  many  murders  during  the  first  three  months  of  the  present 
year  as  London  had  during  all  of  1920.  Liverpool  is  about  one 
and  one-half  times  larger  than  Cleveland,  and  yet  in  1919  Cleve- 
land reported  31  robberies  for  each  one  reported  in  Liverpool, 
and  three  times  the  number  of  mm-ders  and  manslaughters. 
Practically  the  same  ratio  holds  between  Cleveland  and  Glasgow- 
There  are  more  robberies  and  assaults  to  rob  in  Cleveland  every 
year  than  in  all  England,  Scotland,  and  Wales  put  together. 
In  1919  there  were  2,327  automobiles  stolen  in  Cleveland;    in 

London  there  w^ere  290;    in  Liverpool,  10 

All  in  all,  crime  conditions  are  no  more  vicious  in  Cleveland 
than  they  are  in  other  American  cities.  In  point  of  volimie  of 
crime  in  relation  to  size  of  population  Cleveland  is  neither  much 
better  nor  much  worse  than  the  other  municipalities  of  the 
United  States.  It  is  when  we  compare  Cleveland  with  cities 
like  London,  Glasgow,  Liverpool,  or  almost  any  other  European 
municipality  that  ominous  contrasts  are  obtained.  In  this  respect, 
therefore,    Cleveland's  problem  is  the  problem    of   America. 

— FosDiCK,  Survey  Report 


AN  OUTLINE  OF  THE  CLEVELAND 
CRIME  SURVEY 


THE  CLEVELAND  FOUNDATION 

1308  Swetland  Building 

COMMITTEE 

J.  D.  Williamson,  Chairman 

Thomas  L.  Johnson 

Malcolm  L.  McBride 

W.  H.  Prescott 

Belle  Sherwin 

Leonard  P.  Ayres,  Secretary 
James  R.  Garfield,  Counsel 


Raymond  Moley,  Director 


AN  OUTLINE  of 

THE  CLEVELAND 

CRIME  SURVEY 

BY 

RAYMOND  MOLEY 

DIBECTOR   OF   THE    CLEVELAND    FOUNDATION 


PUBLISHED  BY 
THE  CLEVELAND  FOUNDATION 


T 


Copyright,  1922,  bt 
The  Cleveland  Foundation 


-^  FOREWORD 

THE  Cleveland  survey  of  criminal  justice  marked  the  culmination 
of  a  long  period  of  growing  public  distrust  in  the  quality  of  law- 
enforcement  in  Cleveland.  There  had  been  all  the  symptoms  so 
common  to  American  cities,  ''crime  waves,"  official  investigations,  news- 
paper crusades,  and  constant  political  quarreling  over  responsibility 
for  conditions.  The  survey  shows  that  Cleveland's  plight  was  attribut- 
able to  deeper  and  more  fundamental  causes  than  any  personal  re- 
sponsibility. It  was  rooted  in  conditions  due  to  the  great  increase  in 
the  complexity  of  the  problem  of  law  enforcement,  coupled  with  the 
persistent  survival  of  antiquated  methods  and  institutions. 

The  remedy  must  come  through  a  long  series  of  reforms  and  read- 
justments in  all  the  machinery  for  law  enforcement.  To  analyze  the 
exact  conditions,  to  point  out  the  reforms  and  readjustments,  and  to 
indicate  the  responsible  agencies  to  lead  this  reform  were  the  essential 
purposes  of  the  survey.  This  review  of  the  survey  and  the  events  which 
have  followed  its  completion  indicate  clearly  that  already  the  survey 
has  measurably  succeeded  in  its  purpose  and  that  the  process  of  careful 
self-examination  is,  after  all,  the  most  potent  means  of  achieving  funda- 
mental social  reforms. 

This  account  is,  of  course,  in  major  part  a  digest  of  the  survey  itself. 
It  has  borrowed  freely  from  the  published  reports,  although  in  some 
measure  new  interpretations  and  arrangements  have  been  made.  For 
the  selection,  arrangement,  and  addition  of  material  the  author  of  this 
summary  is  alone  responsible. 

It  should  be  remembered  that  the  conditions  herein  described  were 
those  of  the  period  in  which  the  survey  was  conducted — the  first  half 
of  the  year  1921.  Many  changes,  both  in  personnel  and  method,  have 
since  taken  place. 


(vl 


TABLE  OF  CONTENTS 

PAGE 

Foreword                                                                                                        ,  v 

The  Origins  of  the  Survey  1 

The  Cleveland  Foundation  and  Its  Work  2 

The  Survey  2 

The  Staff  op  the  Survey  3 

Police  Administration  5 

Cleveland's  First  Line  of  Defense  5 

General  Organization  of  the  Force  5 

Selection  and  Training  of  Personnel  6 

The  Detective  Bureau  8 

The  Modernization  of  Police  Methods  8 

General  Recommendations  8 

The  Courts,  the  Judges,  and  the  Prosecutors  10 

The  System  in  Brief  10 

The  Paths  and  By-paths  10 

A  Study  in  Pulls  and  Pressures  1 1 

The  Personnel  of  the  Bench  of  Cleveland  14 

The  Municipal  ("Pohce")  Court  19 

The  Criminal  Branch  of  the  Common  Pleas  Court  22 

Criminal  Justice  and  the  Poor  24 

The  County  Clerk  of  Courts  25 

The  Prosecutors  and  Their  Work  25 

The  Municipal  Prosecutor  27 

The  County  Prosecutor's  Office  29 

Juries  in  Cuyahoga  County  29 

Side  Exits  from  the  Temple  of  Justice  31 
Summary  of  Recommendations  for  Judicial  Administration  and  Prosecution      35 

Penal  and  Correctional  Treatment  39 

Correction,  Punishment,  and  Public  Opinion  39 

Paroles  41 

Probation  in  the  Municipal  Court  42 

Pardons  43 

Proposed  New  Criminal  Courts  Building  44 

The  Juvenile  Court  44 

vii 


PAGE 

Medical  Science  and  Crime  46 

Science  and  Crime  46 

The  Adult  Criminal  •                              47 

Juvenile  Behavior  Problems  48 

The  Obsolete  Office  of  Coroner  49 

The  Bar,  the  Press,  and  the  Public  51 

The  Atmosphere  in  Which  Justice  is  Administered  51 

The  Responsibility  of  the  Bar  51 

The  Newspapers  and  Criminal  Justice  56 

The  Public  57 

The  Cleveland  Association  for  Criminal  Justice  60 


vm 


AN  OUTLINE  OF  THE  CLEVELAND 
CRIME  SURVEY 

THE  ORIGINS  OF  THE  SURVEY 

THE  first  demands  for  a  survey  of  criminal  justice  came  from  the 
welfare  agencies  of  the  city.  In  December,  1919,  Professor  C.  E. 
Gehlke,  of  Western  Reserve  University,  secretary  of  the  Welfare 
Federation  Committee  on  Delinquency,  proposed  to  the  Cleveland 
Foundation  that  it  undertake  a  survey  of  the  problem  of  delinquency, 
adult  and  juvenile.  At  that  time  Dr.  Gehlke  prepared  for  the  Founda- 
tion Committee  an  outline  for  a  survey  of  the  administration  of  criminal 
justice  in  Cleveland.  From  this  first  formulation  the  plan  grew  until  it 
was  decided  to  undertake  the  work  which  was  subsequently  conducted 
along  lines  indicated  by  those  responsible  for  the  survey,  now  completed. 

A  survey  of  such  a  subject,  and  upon  so  comprehensive  a  scale,  cannot 
be  lightly  undertaken  in  any  city  at  any  time.  Unless  it  has  a  reason- 
able assurance  of  the  support  of  a  very  considerable  body  of  pubhc  senti- 
ment, a  study  penetrating  so  far  into  a  field  infested  with  intangible  and 
subtle  influences  cannot  hope  to  succeed.  Conditions  were  probably 
as  unsatisfactory  in  1920  as  in  1921,  but  the  public  did  not  so  profoundly 
realize  it.  So  the  Foundation  waited  a  year  for  such  a  sentiment  to 
appear. 

On  November  10,  1920,  Mayor  W.  S.  FitzGerald  addressed  a  letter 
to  the  Foundation,  asking  that  there  be  considered  "a  general  survey 
of  vice  and  crime  conditions  .  .  .  to  be  conducted  without  bias 
of  any  kind  and  with  the  sole  purpose  of  developing  the  facts." 

A  week  later  the  Cleveland  Bar  Association,  through  its  executive 
committee,  adopted  a  resolution  requesting  the  Cleveland  Foundation 
"to  conduct  a  survey  of  the  administration  of  justice  in  Cleveland,  with 
particular  reference  to  the  treatment  of  the  offender,  such  a  study  to  be 
the  basis  of  constructive  measures  to  improve  the  machinery  for  the 
administration  of  the  law."  It  was  resolved  further  that  "the  precise 
scope  of  the  survey  and  the  selection  of  its  personnel  be  left  entirely 
within  the  discretion  of  the  Foimdation  Committee."     With  this  reso- 

[1] 


lution  the  Bar  Association  pledged  "hearty  cooperation  not  only  in 
making  the  survey,  but  in  bringing  about  the  adoption  of  the  con- 
structive measures  therein  recommended." 

These  requests  were  followed  by  formal  requests  of  the  same  general 
character  from  the  Chamber  of  Commerce,  the  League  of  Women 
Voters,  the  Federation  of  Women's  Clubs,  the  Welfare  Federation,  and 
a  number  of  other  organizations  and  individuals. 

THE  CLEVELAND  FOUNDATION  AND  ITS  WORK 

The  Cleveland  Foundation,  which  conducted  this  survey  of  criminal 
justice,  was  founded  in  1914.  The  plan  for  this,  the  first  of  the  com- 
munity trusts,  was  formulated  by  F.  H.  GofT,  and  brought  into  existence 
by  formal  resolution  of  the  board  of  directors  of  the  Cleveland  Trust 
Company.  It  provides  a  means  for  the  distribution  of  bequests  left 
by  men  and  women  interested  in  the  social  welfare  of  the  city  of  Cleve- 
land. During  the  early  years  of  its  existence  its  limited  funds  have 
been  used  for  comprehensive  studies  of  the  life  and  institutions  of  the 
community.  Two  major  surveys  have  been  conducted  by  the  Founda- 
tion— one  of  public  education  in  1915  and  1916  and  one  of  recreation 
completed  in  1919.  In  addition  to  these,  the  Foundation  has  con- 
ducted and  published  the  results  of  several  minor  pieces  of  research, 
such  as  the  Cleveland  Year  Book,  an  annual  publication,  and  a  Directory 
of  Community  Activities. 

The  Cleveland  Foundation  is  governed  by  a  committee,  three  of  the 
five  members  of  which  are  chosen  by  the  United  States  district  judge, 
the  probate  judge,  and  the  mayor  of  Cleveland.  Two  are  appointed  by 
the  Cleveland  Trust  Company,  the  trustee  of  the  funds  of  the  Founda- 
tion. Thus  a  majority  of  the  governing  board  are  chosen  by  public 
officials  and  represent  the  public. 

THE  SURVEY 

This  survey  of  criminal  justice  in  Cleveland  was  authorized  by  action 
of  the  Cleveland  Foundation  Committee  on  January  4,  1921.  Field 
work  was  started  on  February  1  and  was  completed  in  June.  The 
reports  were  written  and  revised  during  the  summer  months  of  1921, 
and  were,  with  one  exception,  given  to  the  public  in  September  and 
October.  A  total  of  35  staff  workers  were  employed  for  various  periods 
of  time  during  the  progress  of  the  work. 

The  total  cost  of  the  survey  was  about  $50,000. 

[2] 


THE  STAFF  OF  THE  SURVEY 

DIRECTORS 

RoscoE  Pound 
Dean  of  Harvard  University  Law  School 

Felix  Frankfurter 

Byrne  Professor  of  Administrative  Law,  Harvard  University 

Law  School 

SPECIAL  DIVISIONS  OF  INQUIRY 

POLICE 

Raymond  Fosdick 
Author  of  American  Police  Systems 

JUDICIAL  ADMINISTRATION 

Reginald  Heber  Smith 
Author  of  Justice  and  the  Poor,  member  of  the  Boston  Bar 

Herbert  B.  Ehrmann 
Member  of  the  Boston  Bar 

PROSECUTION 

Alfred  Bettman 

Formerly  city  solicitor  of  Cincinnati,  and  special  assistant  to 

the  United  States  Attorney  General 

Howard  F.  Burns 
Of  the  Cleveland  Bar 

PENAL  AND  CORRECTIONAL  TREATMENT 

Burdette  G.  Lewis 
State  commissioner  of  institutions  and  agencies  of  New  Jersey 

PSYCHIATRY  AND  MEDICAL  RELATIONS 

Dr.  Herman  M.  Adler 
State  criminologist  of  Illinois 

LEGAL  EDUCATION 

Albert  M.  Kales 
Formerly  professor  of  law  at  Harvard  University 

NEWSPAPERS  AND  CRIMINAL  JUSTICE 

M.  K.  Wisehart 
American  Magazine,  New  York 


C.  E.  Gehlke 
Statistical  director  of  the  survey 

J.  W.  Love 
Editorial  director 


3] 


A  local  advisory  committee  was  chosen.  It  was  made  up  of  50 
citizens.  The  chairman  of  this  committee  was  Amos  Burt  Thompson,  a 
member  of  the  Cleveland  Bar. 

In  the  process  of  investigation  and  in  the  preparation  of  reports  the 
survey  staff  was  given  complete  freedom.  When  the  reports  were  com- 
pleted, they  were  submitted  to  sections  of  the  advisory  committee  for 
criticism  and  suggestions.  They  were  then  submitted,  in  most  cases, 
to  the  public  officials  directly  concerned,  in  order  that  agreement  might 
be  reached  upon  all  matters  of  fact.  For  example,  the  police  report  was 
submitted  to  the  chief  of  police,  the  prosecution  report  to  the  chief 
prosecutors.  Criticisms  were  invited,  freely  given,  and  carefully  con- 
sidered by  the  authors  of  the  reports.  The  reports  were  not  always 
changed  to  meet  these  suggestions,  but,  in  the  main,  this  method  was  an 
invaluable  aid  in  arriving  at  accuracy  and  fairness.  After  this  searching 
process  of  revision  the  reports  were  given  to  the  public. 

Several  luncheon  meetings  were  held  by  the  Foundation,  at  which  the 
reports  were  presented  by  their  authors.  At  each  of  these  meetings  an 
effort  was  made  to  bring  together  the  persons  in  the  community  specific- 
ally interested  in  the  report  presented.  For  example,  the  report  on 
"Medical  Relations"  was  given  before  the  membership  of  the  Academy 
of  Medicine,  the  police  report  before  many  police  officials. 

The  newspaper  support  which  the  survey  received  was  a  very  impor- 
tant factor  in  its  success.  The  public  spirit  of  all  of  the  daily  papers 
was  shown  in  the  fact  that  many  columns  of  space  were  invariably  given 
to  the  reports.  This,  in  spite  of  the  fact  that  from  the  standpoint  of 
"news"  value  reports  of  this  kind  are  long  and  technical.  The  news- 
paper summaries  were  made  by  the  newspapers  themselves,  and  were 
in  the  main  accurately  and  intelligently  prepared.  Editorial  comment, 
cartoons,  and  other  special  forms  of  emphasis  very  greatly  added  to 
the  public  influence  of  the  survey. 


[4 


M 


POLICE  ADMINISTRATION 

CLEVELAND'S  FIRST  LINE  OF  DEFENSE 

R.  FOSDICK  thus  pictures  the  Cleveland  police  force  of  1921: 

"The  present  poHce  department  of  Cleveland  dates  from  1866. 
Since  1866  Cleveland  has  grown  from  a  small  town  to  the  fifth  city  in 
the  United  States.  It  has  grown  not  only  in  size,  but  in  the  heterogeneity 
of  its  population  and  in  the  complexity  of  its  social  and  business  life.  From  a 
town  in  which  many  people  knew  each  other  intimately  and  thus  furnished  a 
substantial  degree  of  self-protection  and  aid  to  the  police,  Cleveland  has  become , 
like  all  other  communities  of  its  size  in  modern  times,  a  city  of  strangers. 

"In  contrast  with  this  complex  growth  of  the  city  the  police  department  of 
1921  is  little  more  than  a  physical  enlargement  of  the  department  of  1866. 
.  .  .  .  The  police  department  has  shown  no  such  vitality,  no  such  capacity 
to  make  itself  over  on  a  new  and  improved  pattern,  no  willingness  to  reshape 
its  methods  to  modern  demands.  Instead,  it  has  hewn  to  the  line  of  tradition, 
ventured  almost  nothing  in  experiment,  and  copied  very  little  from  the  experience 
of  other  private  and  public  organizations.  Today  the  patrol  force  is  distributed 
and  managed  exactly  as  it  was  twenty  or  thirty  years  ago.  There  is  nothing  new 
in  the  detective  service  save  faces  and  a  few  meager  records.  Traffic  regulation 
has  been  developed,  but  this  modern  necessity  has  been  met  only  by  draining 
the  department's  resources  for  coping  with  crime.  .  .  .  Practically  the  same 
methods  are  employed  for  combating  crime  that  were  used  when  Cleveland  was 
just  a  big  neighborhood  in  which  the  police  knew  everybody.     .     .     . 

"A  general  picture  of  the  police  service  in  Cleveland  gives  the  impression  of  a 
group  of  men,  singularly  free  from  scandal  and  vicious  corruption,  but  working  in 
a  rut,  without  intelligence  or  constructive  policy,  on  an  unimaginative,  per- 
functory routine."^ 

GENERAL  ORGANIZATION  OF  THE  FORCE 

The  survey  points  out  that  one  of  the  fundamental  troubles  with  the 
police  force  in  Cleveland  is  the  ambiguity  which  the  city  charter  creates 
in  the  very  important  matter  of  who  is  the  boss  of  the  force.    The  police 

^  Criminal  Justice  in  Cleveland,  pp.  6-9.  All  references  herein  made  not  other- 
wise noted  refer  to  the  consolidated  volume  containing  all  of  the  survey  reports, 
entitled,  "Criminal  Justice  in  Cleveland." 

f51 


of  Cleveland  are  constituted  as  a  division  of  the  department  of  public 
safety  at  the  head  of  which  is  a  director  of  public  safety,  appointed  by 
the  mayor.  At  the  head  of  the  division  of  police  is  a  chief  of  police,  ap- 
pointed by  the  mayor  and  subject  to  civil  service  rules  and  regulations. 
The  rank  and  file  of  the  police  personnel  are  appointed  by  the  director  of 
public  safety.  In  the  very  important  matter  of  the  appointment,  dis- 
cipline, and  dismissal  of  the  police  officers  the  chief  is  actually  given  very 
little  power.  He  cannot  appoint:  he  can  only  suspend  and  submit  his 
decision  to  the  will  of  the  director  of  safety,  who  in  turn  is  subject  to 
being  overruled  by  the  civil  service  commission. 

The  survey  points  out  that  the  whole  system  is  admirably  suited  for 
the  favorite  game  of  passing  the  buck — an  especially  useful  game  where 
public  criticism  is  involved. 

SELECTION  AND  TRAINING  OF  PERSONNEL 

The  outstanding  features  of  present  provisions  for  the  selection  and 
training  of  personnel  are  as  follows: 

(a)  A  very  large  majority  of  the  force  are  drawn  from  various  types 
of  manual  work.  Most  of  these  are  unskilled  or  semi-skilled,  and  few 
of  them  have  the  intellectual  equipment  necessary  for  good  police  work. 

(6)  The  men  appointed  to  the  police  force  come  in  too  late  in  life. 
They  are,  in  general,  over  twenty-five  years  of  age,  which  is  somewhat 
too  old  to  guarantee  the  proper  sort  of  material  for  subsequent  training. 
The  survey  recommends  that  a  maximum  of  thirty  years  should  be 
placed  upon  entrance  to  the  force,  while  every  effort  should  be  made  to 
bring  in  men  under  twenty-five. 

(c)  A  study  of  the  appointments,  resignations,  and  dismissals  shows 
that  there  is  an  excessive  turnover  in  the  force.  About  one-quarter  of  the 
new  recruits  leave  during  the  first  year  of  service,  and  half  of  them  within 
four  or  five  years.  Because  of  this  fact  the  force  always  includes  a  large 
proportion  of  inexperienced  men  and  also,  presumably,  of  dissatisfied 
men  who  are  looking  for  an  opportunity  to  leave. 

(d)  The  personnel  of  the  department  indicates  that  the  Cleveland 
civil  service  commission  has  seemingly  been  unable  to  go  much  beyond  a 
mere  sorting  out  of  available  applicants  to  the  force.  Very  little  effort 
has  been  made  to  go  out  into  the  field  and  bring  in  better  material. 

Police  Training  School 
One  of  the  most  commendable  achievements  in  the  department  has 
been  the  creation  of  a  full-time  training  course  of  eight  weeks  for  recruits. 

f61 


The  survey  suggests  that  the  school  be  developed  in  such  a  way  as  to 
become  the  staff  agency  of  the  department  serving  as  a  personnel  service 
division.  It  should  take  over  much  of  the  responsibility  for  conducting 
personaHty  tests  and  determinations  of  efl&ciency  and  of  adaptability  to 
certain  kinds  of  police  work. 


CLEVELAND   CONDUCTS   WRITTEN  EXAMINA- 
TIONS FOR  PROMOTION 

I  ABSOLUTELY  split  off  from  the  bulk  of  my  professional 
civil  service  reform  friends  when  they  advocated  written 
competitive  examinations  for  promotion.  In  the  poHce 
department  I  found  these  examinations  a  serious  handicap  in 
the  way  of  getting  the  best  men  promoted,  and  never  in  any 
office  did  I  find  that  the  written  competitive  promotion  examina- 
tion did  any  good.  .  .  .  When  once  in  office,  the  best  way 
to  test  any  man's  ability  is  by  long  experience  in  seeing  him 
actually  at  work.  His  promotion  should  depend  upon  the  judg- 
ment formed  of  him  by  his  superiors." 

— Roosevelt,  Autobiography 


Promotion  and  Discipline 

Promotions  are  governed  entirely  by  the  rules  and  regulations  of  the 
civil  service  commission,  and  are  based  upon  written  examinations  con- 
ducted by  the  commission.  The  survey  points  out  that  the  formality 
and  the  attention  given  to  purely  negative  qualities  by  this  system  of 
promotion  are  such  as  to  allow  small  opportunity  to  give  credit  for  really 
valuable  work  performed  as  a  pohceman.  Initiative,  zeal  in  the  carrying 
on  of  work,  ability  to  get  work  out  of  others,  creative  imagination,  are 
not  adequately  taken  into  consideration  when  promotions  are  based 
upon  such  a  test. 

The  confusion  in  authority,  which  has  already  been  described,  reaps 
its  most  bitter  fruit  in  the  loss  of  morale  in  the  department  because  of 
lack  of  adequate  disciphnary  power.  The  survey  states  that  the  ''  whole 
force  needs  toning  up.  It  needs  to  be  imbued  with  vigor  and  alertness. 
This  means  discipline;  it  means  strict  observance  of  the  letter  of  the 
department  regulations.  It  means  the  exaction  of  a  full  measure  of  com- 
pliance with  police  duties.    This  discipline  cannot  be  had  when  there  is 

[7] 


no  definite  person  to  whom  the  men  can  look  for  reward  for  good  services 
performed  and  to  whom  they  are  held  accountable  when  their  work  has 
not  been  well  performed," 

THE  DETECTIVE  BUREAU 

Detectives  are  selected  from  the  miiformed  force  by  the  chief  of  police. 
There  are  81  patrolmen  now  serving  as  detectives.  These  detectives  are 
supposed  to  be  the  cream  of  the  uniformed  force,  but,  in  a  test  made  by 
the  application  of  the  United  States  Army  Alpha  Test  for  mental  abiUty, 
it  was  found  that  the  mounted  police,  the  traffic  police,  and  other  groups 
show  higher  degrees  of  mental  abiUty  than  detectives.  No  one  of  the 
entire  group  of  men  in  the  detective  force  was  shown  by  the  mental  test 
to  have  "very  superior"  intelligence.  About  25  per  cent,  are  possessed 
of  inferior  intelligence,  which  means  that  they  have  the  mentality  of  boys 
from  nine  to  thirteen.  This  is  attested  by  numerous  examples  of  poor 
detective  work  cited  by  the  survey. 

THE  MODERNIZATION  OF  POLICE  IVIETHODS 

The  survey  points  out  very  definitely  that  certain  changes  are  needed 
in  the  routine  operations  of  the  poHce  force  in  order  to  bring  it  into  fine 
with  the  development  of  the  city  and  modern  improvements  in  poHce 
technic.  There  should  be  a  complete  reorganization  of  police  districts, 
because  changes  in  population  and  in  methods  of  transportation  have 
completely  altered  the  problems  of  police  work.  There  should  be  a  reor- 
ganization of  police  beats. 

The  much  mooted  question  of  how  many  policemen  Cleveland  should 
have  is  not  answered  definitely  because  a  proper  organization  of  the  force 
will  mean  a  great  unprovement  of  service  with  the  present  force.  The 
survey  points  out  that  Cleveland  has  174  poHcemen  per  1,000  population, 
while  Detroit  has  194.  Cleveland  is,  from  the  standpoint  of  numbers, 
much  behind  St.  Louis,  which  has  250  men  per  1,000. 

GENERAL  RECOMMENDATIONS 

1.  There  should  be  a  clear  line  of  responsibility  running  from  a  single 
head  through  the  whole  organization.  A  single  leader  should  be  in  imme- 
diate charge  of  the  force.  This  leader  should,  if  necessary,  be  drawn  from 
outside  of  Cleveland.  He  should  be  a  civilian  administrative  head,  and 
he  should  be  paid  an  adequate  salary  and  given  permanent  appointment. 


2.  The  personnel  of  the  force  should  be  improved  in  character.  Men 
should  be  drawn  into  the  force  at  an  earlier  age,  and  every  effort  should 
be  made  to  keep  them  for  a  longer  time.  The  maximum  age  should  be 
thirty,  with  an  attempt  made  to  secure  men  under  twenty-five. 

3.  Promotion  should  be  put  squarely  up  to  the  director  of  police  al- 
ready recommended,  who  should  have  entire  control  over  the  determina- 
tion of  promotions  and  should  be  assisted  in  this  work  by  a  board  of 
promotion  made  up  of  members  of  the  force  itself,  chosen  from  the  higher 
ranks.  This  would  remove  to  a  very  large  extent  the  present  authority 
of  the  civil  service  commission  in  the  matter  of  promotion. 

4.  In  matters  involving  discipline,  the  director  of  police  should  have 
final  and  complete  determination. 

5.  In  recruiting  the  detective  force  it  should  be  possible  to  draw 
men  from  outside  of  the  force  directly  into  the  detective  bureau. 

6.  The  patrol  service  should  be  reorganized  to  accommodate  the 
changes  which  the  use  of  motor  equipment  demands.  There  should  be 
more  motor  equipment  used  in  regular  patrol  work,  patrol  booths  should 
be  established,  police  precincts  should  be  consolidated  to  reduce  the  num- 
ber from  15  to  seven  or  eight,  and  the  present  patrol  beats  should  be 
rearranged. 

7.  There  should  be  a  special  service  division  in  charge  of  crime  pre- 
vention, and  other  speciaHzed  work  which  has  come  to  be  a  part  of 
legitimate  police  interest. 

8.  There  should  also  be  a  secretarial  division  and  an  adequate  system 
of  records. 


Note:  line  25  shoiild  read: ••.-174  policemen  per 
[1CX),000  population.  Line  27: 250  mete  per  100,000. 


[9] 


THE  COURTS,  THE  JUDGES,  AND  THE  PROSE- 
CUTORS 

THE  SYSTEM  IN  BRIEF 

**^T^HE   present  method  of  administering  criminal  law  is  built 
I     upon  two  court  systems,  two  prosecutors'  ofl5ces,  and  a  grand 
jury. 
"The  criminal  division  of  the  Municipal  Court  has  jurisdiction  over 
misdemeanors,  violations  of  city  ordinances,  and  preliminary  examina- 
tions in  cases  of  felony.     A  defendant  who  desires  a  jury  trial  in  the 
Municipal  Court  must  claim  it  seasonably,  but  there  are  relatively  few 
such  trials. 

"When  a  person  is  arrested  for  a  felony,  the  Municipal  Court  holds  a  pre- 
liminary examination,  unless  the  defendant  waives  his  right  to  such  examination. 
If  the  court  finds  there  is  probable  cause  or  the  examination  is  waived,  the  court 
has  the  power  to  'bind  over'  to  the  grand  jury.  The  grand  jury  sits  practically 
continuously  except  during  July  and  August.  The  prosecuting  attorney  for 
Cuyahoga  County  presents  evidence  to  the  grand  jury,  and  if  a  prima  facie  case 
is  made  out,  the  grand  jury  returns  a  '  true  bill,'  stating  the  crime  for  which  the 
defendant  is  indicted.  After  this,  the  case  proceeds  before  a  judge  of  the  Com- 
mon Pleas  Court  through  the  usual  stages  of  arraignment,  plea,  trial,  and  dis- 
position. In  all  its  essentials  the  theory  of  handling  felonies  is  the  same  as  it 
has  been  for  many  generations  in  village  and  city  alike  throughout  the  United 
States."    (Pp.  231-232.) 

THE  PATHS  AND  BY-PATHS 

In  the  graphic  manner  shown  on  page  1 1  the  survey  has  portrayed 
the  tortuous  process  by  which  society  seeks  to  protect  itself  against  its 
enemies.  To  the  layman  the  criminal  law  means  a  jury  trial  in  open 
court.  Thus  it  is  portrayed  in  romance,  newspapers,  and  the  drama. 
But  to  the  criminal  lawyer  it  is  a  process,  nine-tenths  of  which  is  operat- 
ing in  the  dark,  subject  to  powerful  pressures  evoked  by  those  who  desire 
to  save  an  accused  from  punishment. 

"In  the  first  place,  many  offenses  are  committed  for  which  no  one  is  arrested. 
This  is  a  problem  of  police  administration.  After  an  arrest  is  made,  the  police 
may  release  the  prisoner  because  of  insufficient  evidence,  or  turn  him  over  to 
other  authorities.    In  Cleveland  there  is  a  practice  in  the  police  department  of 

110] 


Police  jurisdiction 
■■UKuniapsI  court  jurij<ii«ti«r) 

Common  ?\aif  Mvrtjuri«iietOA. 


Diagram  1. — The  path  of  justice 

releasing,  or  'golden-ruling,'  first  offenders,  but  this  practice  is  rarely  used  in 
felony  cases.  These  matters  are  all  questions  of  police  policy.  Once  a  man  is 
held,  however,  the  judicial  processes  begin  to  operate.  The  police  prosecutor 
may  report  'no  papers,'  in  which  case  the  prisoner  is  released  without  further 
proceeding.  Or  the  police  prosecutor  may  move  to  'nolle' — i.  e.,  nolle  prosequi — 
the  case,  which  also  liberates  the  prisoner.  The  lower  court  may  find  that  there 
is  'no  probable  cause'  and  discharge  the  prisoner.  The  grand  jury  may  fail  to 
indict  a  defendant  by  returning  a  finding  of  'no  bill.'  If  a  man  is  indicted,  the 
prosecuting  attorney  in  the  Common  Pleas  Court  may  move  to  'nolle'  the  case. 
The  defendant  may  plead  guilty,  either  on  arraignment  or  by  change  of  plea 
later.  Throughout  this  procedure  there  is  always  the  possibility  of  the  de- 
fendant jumping  bail  should  his  case  assume  a  hopeless  aspect."     (Pp.  234-235.) 

A  STUDY  IN  PULLS  AND  PRESSURES 

Public  "demands"  for  severity  do  not  help  much.  They  merely 
change  the  incidence  of  pressure  for  leniency.  In  1919  a  wide-spread 
clamor  for  more  severity,  carefully  stimulated  by  newspapers,  brought 
about  a  very  great  decrease  in  paroles.  The  survey  shows  this  decrease 
by  printing  two  pages  from  the  conviction  books  of  the  Common  Pleas 
Court.  One  page,  dated  1917,  shows  that  of  35  convictions,  the  court 
allowed  24  paroles.     Another  page  taken  from  1920  shows  only  three 

[11] 


paroles  among  35  convictions.  The  lesson  taught  by  this  comparison 
is  twofold.  It  demonstrates  the  totally  unscientific  character  of  parole 
methods.  They  are  granted,  it  seems,  not  because  of  ascertained  and 
well-considered  reasons,  but  for  the  purpose  of  making  pubHc  demon- 
strations of  compliance  with  popular  clamor.  Mr.  Dooley's  sage  ob- 
servation that  the  courts  "folly  the  iliction  returns"  is  outdone.  The 
courts  anticipate  the  election  returns.  This  shifting  sentiment  is  thus 
described  in  the  survey:  "In  the  old  game  of  'Donkey'  the  bUndfolded 
player  often  relies  upon  the  cheers  of  the  onlookers  to  guide  him  to  the 
spot  where  he  can  pin  the  animal's  tail  in  its  proper  place.  In  like 
manner  the  judges,  deprived  of  the  opportunity  of  forming  their  own 
judgment  upon  all  the  facts,  are  often  prone  to  follow  the  clamor  of  the 
press  and  public.  When  the  cry  is  'thumbs  up,'  paroles  issue  in  abun- 
dance; but  when  it  is  'thumbs  down,'  both  the  good  and  the  wicked 
travel  the  same  road." 

Such  a  change  of  policy  does  not  dampen  the  ardor  of  the  criminal 
lawyer.  He  merely  shifts  his  attack  to  a  less  conspicuous  sector,  which 
soon  yields  the  same  result  as  before.  The  survey  says  that  there  is  a 
sort  of  Gresham's  law  in  the  administration  of  justice.  Just  as  cheaper 
currency  tends  to  drive  out  dearer,  so  the  "easy"  agencies  tend  to  oust 
the  "stricter"  of  jurisdiction.  The  following  diagram  shows  how  the 
political  criminal  lawyers  met  the  increasing  severity  of  judges  by  efforts 
to  get  noUes  from  the  prosecutors  and  thus  keep  cases  out  of  court.  It 
covers  a  period  of  seven  years. 


Per 

cent. 

35 

30 

25 

20 

15 

10 

5 


Per  cent  caeea  bench  paroled  were   of  all  cases  sentenced 

Per  c«nt.  cases  nolled  were  of  all  cases     that  were  'begun 

y^ 

/ 

..^^ 

^^_x 

"   \ 

J 

/ 

\ 

y 

Ox 

^ 

^^ 

^^ 

^ 

""^ 

\ 

1914      1915      1916      1917      1918      1919      1920 

Diagram  2. — Comparison  of  decline  of  "bench  paroling"  with  increase  of  allowing 
^'' nolle  yroseqai" 

[12] 


Thus  the  pubHc,  unorganized  and  short-sighted,  gets  no  real  results 
for  its  righteous  indignation.     The  political  criminal  lawyer  continues 


Of  1,000  Felony  Arrests — 
127  were  disposed  of  by  the  police 


85  were  " nolle d"  or  "no-papered"  by  the  police  prose- 
cutor 


143  were  discharged  or  dismissed  or  found  guilty  of  a 
misdemeanor  in  Municipal  Court 


139  were  "no-billed"  by  the  grand  jury 


107  were  "nolled"  by  the  coimty  prosecutor 


91  made  an  original  plea  of  guilty 


148  changed  the  plea  to  guilty 


42  were  variously  disposed  of 


118  came  to  trial 


Diagram  3. — The  disposition  of  each  1,000  cases  of  felony  arrests 

[13] 


to  operate  at  the  old  stand.    He  follows  the  example  of  the  wise  farmer 
who  rotates  his  crops. 

Diagram  3  is  based  upon  a  study  of  the  4,499  felony  cases 
begun  in  the  Common  Pleas  Court  during  1919,  supplemented  by  in- 
formation supplied  by  the  police  department.  It  shows  how  far  from 
the  truth  is  the  popular  conception  of  cases  decided  in  court  with  all  the 
traditional  formahty  of  a  "trial"  present.  Only  one  in  10  came  to 
fruition  in  such  surroundings. 

THE  PERSONNEL  OF  THE  BENCH  OF  CLEVELAND 

As  to  the  judges  of  the  Common  Pleas  Court,  the  conclusion  of  the 
survey  was  that,  "as  a  group,  the  Common  Pleas  Bench  would  probably 
compare  favorably  with  county  courts  in  other  metropolitan  jurisdic- 
tions. Criticism  largely  centers  on  its  want  of  fine  traditions,  absence  of 
dignity,  and  lack  of  independence  in  thought  and  action.'* 

The  survey  characterization  of  the  municipal  bench  is  not  so  favor- 
able. It  concludes  that,  "on  the  whole,  the  personnel  of  the  municipal 
bench  is  inferior  in  quality  and  ineffectual  in  character.  A  close  observer 
of  the  Cleveland  courts  for  years  states  that  the  present  Municipal  Court 
judges  are  not  much  superior  to  the  old  justices  of  the  peace."  It  is 
the  conclusion  of  the  survey  that  only  four  of  the  10  judges  of  the  Mu- 
nicipal Court  measure  up  to  the  requirements  of  the  office,  while  three 
are  mediocre  and  one  apparently  has  no  qualifications  worth  mentioning. 

Of  late  many  thoughtful  people  have  looked  very  seriously,  not  to  say 
critically,  at  the  methods  by  which  judges  are  selected.  The  survey 
throws  helpful  light  upon  this  subject. 

The  Advent  of  Non-Partisanship 
Up  to  1908  the  prevailing  method  of  nomination  of  judges  was  by 
party  convention,  and  judges  so  nominated  were  placed  upon  the  party 
ticket  with  the  other  county  officers.  In  1908  a  change  was  made  in  the 
method  of  nomination.  This  change,  however,  was  optional.  In  1911 
there  was  passed  the  famous  non-partisan  judiciary  act,  which  provided 
that  there  should  be  no  party  designation  upon  the  election  ballot,  but 
that  nominations  should  be  as  before.  In  1912  the  new  constitution 
provided  for  direct  primary  election  or  petition  for  nominations,  and 
since  then  this  method  has  been  in  force.  There  is  an  increasing  use 
of  nomination  by  petition  which  does  not  require  the  candidate  for 
judge  to  run  in  the  primary.  He  merely  secures  the  necessary  names 
to  his  petition  and  is  thus  placed  upon  the  non-partisan  judicial  ballot 

[14] 


which  is  voted  upon  at  election.  This  fundamental  change  in  the 
method  of  selecting  judges  has  now  been  in  operation  long  enough  to 
justify  certain  definite  judgments.  The  survey  very  carefully  sought  to 
determine  what,  if  any,  changes  are  to  be  observed  in  the  quahty  of 
character  of  the  personnel  of  the  bench  since  the  non-partisan  system 
came  into  being. 

Some  Effects  of  Non-Partisanship 
The  effects  noted  in  Diagram  4  upon  the  personnel  of  the  bench  since 
1912  are  not  intended  in  any  sense  as  a  reflection  upon  the  present 


THE  JUDGES 

THE  administration  of  justice  is  not  a  purely  mechanical 
process.  Its  satisfactory  conduct  depends  more  than  any 
industry  on  the  human  factor,  because  the  administration 
of  justice  deals  with  the  evaluation  of  human  souls,  and  not  with 
commodities  or  operations  capable  of  measurement.  Among 
these  human  factors  the  judges  hold  the  place  of  unique  re- 
sponsibility. Their  attitude  at  the  trial  often  determines  the 
result.  They  have  it  in  their  power  to  suspend  sentences,  to 
grant  new  trials,  to  eliminate  delay,  to  reduce  perjury,  to  assure 
better  selection  of  jurors,  and,  theoretically  at  least,  to  pass  on 
motions  to  "  nolle  "  cases  before  them.  It  is  obvious  that  strong 
judges,  capable  of  inspiring  respect  and  unafraid,  may  save  even 
an  archaic  system  from  absolute  failure.  No  system  of  ad- 
ministering justice  can  rise  higher  than  the  quahty  of  its  bench, 
although  it  may  go  much  lower. 

— Criminal  Justice  in  Cleveland,  p.  251 


incumbents,  nor  are  they  intended  to  make  a  comparison  invidious  in  its 
nature  among  the  present  judges.     The  more  important  effects  are  two: 

1.  Younger  Men  on  the  Bench. — A  ruler  laid  across  Diagram  4  along 
the  line  of  forty  years  of  age  shows  only  two  judges  beginning  their  ser- 
vice under  that  age  before  1912  and  eight  after  1912.  While  before 
1912  many  judges  were  elected  after  attaining  the  age  of  fifty  years,  since 
1912  no  one  has  been  elected  of  that  age  or  over. 

2.  Less  Experience  in  Private  Practice. — The  diagram  also  shows  that 
before  1912  most  of  the  judges  were  apparently  well  seasoned  in  private 

[15] 


'S  01   V   V   V 


dddddddS  ddS  dS  dddS  ddS 


s  il 


SO 

o  fl   ~ 


[16] 


fe;| 


practice  of  the  law,  while  since  that  date  the  majority  have  been  trained 
chiefly  in  the  office  of  judge  of  an  inferior  court,  or  prosecutor. 

The  Politics  of  "Non-Partisanship" 
It  is  absurd  to  assert  that  a  mere  legislative  enactment  placing  judi- 
cial candidates  upon  a  non-partisan  ballot  can  eliminate  the  interest  of 
the  bench  in  things  political.  It  has  merely  throwoi  upon  each  judge 
the  enormously  increased  burden  of  building  his  own  "organization." 
Before  1912  we  had  two  parties  with  judges  responsible  to  some  degree 
to  one  or  the  other.  Since  then  the  judges  have  had  to  reckon  with  other 
interests  in  order  to  secure  reelection.  Deference  to  these  interests  may 
or  may  not  be  better  for  the  bench  than  deference  to  a  pohtical  party. 
This  depends  upon  the  individual  point  of  view.  But  the  sui'vey 
points  out  clearly  the  considerations  which  confront  the  judge  seeking 
reelection  and  the  line  of  conduct  which  these  considerations  compel 
him  to  follow.  Chief  among  these  interests  are  the  petty  ward  or  police 
court  politician,  the  appeal  of  race  and  religion,  certain  labor  organiza- 
tions, and  the  newspapers. 

1.  The  Traffic  in  Influence. — The  atmosphere  of  the  criminal  court 
seems  to  favor  the  growth  and  prosperity  of  the  petty  poHtician.  He 
serves  as  a  kind  of  political  broker.  He  preys  upon  both  the  pubHc  and 
the  public  official.  The  person  caught  in  the  toils  of  the  law  uses  him 
because  of  his  reputed  influence  with  officials,  the  public  official  recognizes 
him  because  of  his  real  or  fancied  power  to  deliver  votes.  In  either 
case  he  profits,  while  the  public  interest  is  overlooked  and  the  official  is 
brought  to  a  misuse  of  his  official  power. 

2.  The  Appeal  to  Race  and  Religion. — The  following  passage  from 
the  survey  (pp.  263-264)  deserves  careful  consideration  by  the  advocate 
of  a  non-partisan  judiciary.  It  describes  a  new  influence  upon  the 
judiciary: 

" '  In  order  properly  to  play  the  game,'  observes  one  of  the  more  sophisticated 
judges,  'it  is  necessary  for  a  judge  to  attend  weddings,  funerals,  christenings, 
banquets,  barbecues,  dances,  clam-bakes,  hoHday  celebrations,  dedications  of 
buildings,  receptions,  opening  nights,  first  showings  of  films,  prize-fights,  bowHng 
matches,  lodge  entertainments,  church  festivals,  and  every  conceivable  function 
given  by  any  group,  national,  social,  religious.'  A  municipal  judge  is  said  to  have 
refereed  a  prize-fight.  Three  judges  of  unquestioned  character  campaigned  by 
visiting  the  saloons  in  the  different  foreign  sections  of  the  city,  and  were  presented 
to  long  Unes  of  foreign-speaking  voters  with  the  aid  of  an  interpreter.  No  drinks 
were  bought,  not  a  cent  was  spent,  only  handshakes  were  exchanged,  yet  this  was 
deemed  essential  campaigning. 

[17] 


"One  of  the  most  disturbing  features  is  the  intensifying  of  racial  and  religious 
appeals.  A  man  is  elected  or  appointed  because  he  is  a  Pole,  a  Jew,  an  Irishman, 
a  Mason,  a  Protestant,  and  it  is  sometimes  difficult  for  a  committee  to  reject  a 
candidate  without  being  charged  with  discrimination.  On  the  other  hand,  an 
even  more  vicious  tendency  has  begun  to  appear — the  formation  of  organizations 
with  the  avowed  or  unavowed  purpose  of  '  knifing '  every  candidate  who  is  not  of 
a  particular  religion,  nationality,  or  color.  It  is  estimated  that  one  such  organiza- 
tion last  fall,  through  the  expedient  of  issuing  thousands  of  marked  ballots  at 
churches  and  other  places,  succeeded  in  swaying  50,000  votes  among  the  regular 
nominees.  The  marked  ballot  carried  nothing  to  indicate  the  sectarian  nature  of 
the  organization,  which  bore  a  title  similar  to  that  of  the  Civic  League,  an  im- 
partial organization,  and  it  is  not  to  be  supposed  that  so  many  voters  knew  of  the 
dominant  motive  behind  the  marked  recommendations," 

3.  The  Influence  of  Labor  Organizations. — One  of  the  respected  leaders 
of  labor  says:  "The  unions  have  lost  faith  in  the  courts;  they  believe 
the  man  who  has  the  influence  gets  by."  This  distrust  is  reflected  in 
very  serious  efforts  on  the  part  of  certain  labor  organizations  to  elect 
judges  favorable  to  them  and  to  defeat  those  suspected  of  hostility. 
Within  recent  years  two  very  able  judges  have  been  retired  because  of 
the  opposition  of  labor.  One  of  these  judges  led  the  ticket  in  1912  and 
was  defeated  in  1918.  The  survey  states,  however,  in  connection  with 
this  activity  on  the  part  of  labor,  that  little  good  can  come  from  the 
simple  partisan  view  that  labor  is  largely  to  blame  for  the  unsatisfactory 
manner  in  which  judges  are  compelled  to  preserve  their  official  lives. 
"The  folly  of  exposing  a  judiciary  to  every  wind  that  blows  and  then 
blaming  a  particular  wind  is  apparent." 

4.  The  Bench  as  "News." — Probably  the  most  important  influence 
with  which  a  judge  must  reckon  under  a  non-partisan  system  is  the 
public  press.  While  in  the  Cleveland  newspapers  editorial  support  of 
judges  has  in  the  main  been  wisely  given,  it  is  unfortunately  true  that 
editorial  support  is  a  minor  factor  in  the  influence  of  a  newspaper  upon 
elections.  It  is  as  "news"  that  most  people  learn  to  know  judges,  and 
it  is  the  "news"  or  "copy"  value  of  a  judge  that  largely  determines  his 
continuance  on  the  bench.  Some  publicity  is  justly  earned  by  a  judge 
when  he  inaugurates  a  reform  or  hands  down  a  decision  on  an  impor- 
tant and  unusual  question — such  publicity  means  public  education. 
But,  unfortunately,  quantity  of  publicity  seems  to  be  more  important 
than  quality.  The  law  of  suggestion  leads  the  public  to  vote  for  the 
most  widely  advertised  name.  For  example,  two  candidates,  hitherto 
comparatively  unknown  and  of  no  marked  fitness  for  the  bench,  have 
since  1912  been  elected  because  they  bore  the  same  names  as  two  retired 

[18] 


judges  widely  known  and  respected.  A  blacksmith  once  running  on  the 
sociaHst  ticket  for  the  Supreme  Court  carried  Cuyahoga  County  because 
his  name  looked  and  sounded  like  that  of  the  well-known  probate  judge. 
"I  don't  care  what  you  say  about  me  if  you  keep  on  publishing  my 
name,"  remarked  one  ambitious  official. 

In  the  making  of  publicity,  the  rules  of  newspaper  enterprise  govern. 
It  is  the  unique  and  sensational  thing  that  gets  into  the  paper.  Lord 
Northcliffe  is  quoted  as  giving  this  sovereign  formula  for  "news  values." 
"If  a  dog  bites  a  man,  it  is  not  unusual,  therefore  it  is  not  news;  but  if 
a  man  bites  a  dog,  it  is  news."  The  inexorable  character  of  this  law 
does  much  to  promote  the  fortunes  of  the  judge  who  does  unusual  things 
as  compared  with  the  one  who  does  not.  It  is  not  entirely  inaccurate 
to  say  that  the  judge  who  acts  like  a  judge  is  not  good  copy,  but  the 
judge  who  acts  otherwise  "gets  the  front  page."  For  example,  a  pre- 
siding judge  labors  for  long  hours  to  clear  up  a  badly  clogged  docket; 
he  works  nights  and  holidays,  but  few  people  hear  of  it.  Another  judge 
is  prominently  featured  for  having  driven  in  an  automobile  one  evening 
all  the  way  to  Canton  with  a  sporting  editor  and  other  fight  fans  to 
attend  a  prize  fight.  Long  study  of  a  difficult  case  is  not  noted,  but 
the  newspaper  carries  the  story  that  "Municipal  Judge  .  .  .  ate 
candy  as  he  Hstened  to  testimony  Friday.  'It  keeps  one  from  gettin' 
nervous,'  the  Judge  says." 

It  has  been  aptly  said  that  a  relationship  grows  up  between  the  re- 
porter and  the  judge  similar  to  that  between  the  bumble  bee  and  the 
clover.  The  one  exploits  the  other.  The  reporter  needs  stories;  the 
judge  can  give  them.  The  judge  needs  the  publicity  which  the  re- 
porter can  provide. 

In  the  contest  for  publicity,  service  on  the  criminal  bench  is  a  distinct 
advantage.  There  are  more  "stories"  there;  hence  it  has  become  cus- 
tomary for  judges  to  seek  service  on  the  criminal  bench  in  election  year. 
The  schedule  is  apparently  conveniently  arranged  to  provide  judges 
seeking  reelection  with  this  needed  means  of  publicity.  The  survey  gives 
in  detail  the  manner  in  which  these  terms  have  been  arranged. 

THE  MUNICIPAL  ("POLICE")  COURT 

The  formation  of  the  Municipal  Court  in  1912  marked  an  epoch  in 
the  history  of  the  city.  A  splendid  form  of  organization  was  provided, 
with  provision  for  a  chief  justice  with  ample  powers.  Two  of  the  10 
judges  sit  in  the  criminal  branch,  or  "poHce  court,"  and  try  misde- 
meanors, violations  of  city  ordinances,  and  conduct  preliminary  hearings 

[19] 


in  felony  cases.  The  rooms  in  which  court  is  held  are  located  in  the  old 
Champlain  Street  police  station,  and  are  indescribably  sordid  and  in- 
adequate. The  decorum  which  the  judges  have  permitted  in  these 
rooms  is  thus  described  in  the  survey:  "In  neither  room  did  the  pro- 
ceedings reveal  the  necessary  dignity  of  a  court.  The  rooms  were 
crowded  mth  lawyers,  defendants,  witnesses,  police,  hangers-on,  and 
sightseers,  many  chewing  gum  or  tobacco,  even  when  addressing  the 
court.  In  Room  2  an  attorney  was  waving  a  cigar  in  the  judge's  face 
by  waj''  of  emphasizing  his  argument.  Crowded  around  the  bench  were 
lawyers,  witnesses,  and  officials,  almost  screening  from  view  the  testi- 
fying witness.  Others  in  the  court-room  were  standing  about  talking 
and  were  occasionally  asked  by  the  judge  to  be  quiet  in  order  that  he 
might  hear  the  testimony — this,  although  the  witness  chair  was  placed 
directly  against  the  judge's  bench." 


' '  "W"  USTICE  in  the  minor  courts — the  only  courts  that  mil- 
I     lions  of  our  people  know — administered  without  favor- 
^'^     itism,  by  men  conspicuous  for  wisdom  and  probity,  is  the 
best  assurance  of  respect  for  our  institutions." 

— Chaeles  E.  Hughes 


"In  order  to  make  themselves  heard  in  this  court-room,  lawyers  and 
others  have  to  lean  over  the  bench  to  address  the  judge.  This  produces 
an  impression  of  a  confidential  communication,  which,  although  false, 
lends  color  to  the  belief  that  certain  lawyers  have  'pull  with  the  judge.' " 

No  Separate  Sessions 
All  sorts  and  conditions  of  cases  are  heard  indiscriminately  in  the 
same  sessions.     Minor  and  major  offenders,  men  and  women  alike, 
await  their  turns.     Cases  of  robbery,  rape,  and  traffic  violations  may  be 
heard  within  the  same  haK-hour. 

People  and  Property 
In  the  hurly-burly  of  the  court's  business  little  time  is  used  to  hear 
individual  cases.  A  most  serious  discrepancy  exists  between  the  time 
given  to  decide  a  civil  case  involving  a  few  dollars'  worth  of  property 
and  criminal  cases  sometimes  involving  the  liberty  and  happiness  of 
persons.     In  1919, 11,888  criminal  cases  were  tried  by  each  judge,  while 

[20  1 


in  civil  cases,  involving  mostly  less  than  $300,  the  number  per  judge 
was  2,422,  each  of  the  criminal  cases  presumably  receiving  about  one- 
fifth  the  judicial  attention  that  a  civil  case  received.  By  a  process  of 
division  we  might  with  some  justification  say  that  the  judicial  impor- 
tance of  a  person  brought  into  police  court  is  one-fifth  of  $300,  or 


The  Law's  Delay 
The  survey  determined  statistically  that  it  takes  the  least  time  to 
find  a  person  guilty,  a  longer  time  to  discharge  him,  and  a  still  longer 
time  to  dismiss  or  ''nolle"  a  case.  Therefore,  it  is  the  object  of  every 
police  court  lawyer  to  get  his  case  continued  as  many  times  as  possible, 
wearing  down  the  patience  of  the  state's  witnesses  through  compelling 
them  to  spend  unnecessary  hours  and  days  in  the  unsavory  atmosphere 
of  the  court,  and  perhaps  taking  the  edge  off  the  police  officer's  zest  in 
his  care.  This  process  of  delay  is  achieved  through  the  excessive 
granting  of  continuances  many  times  in  direct  violation  of  a  rule  of  the 
Municipal  Court  itself  requiring  motions  for  a  second  continuance  to 
be  in  WTiting. 


'A  friend  in  the  court  is  better  than  money  in  the  purse." 

— Shakespeare 


Friends  in  the  Court 

The  professional  police  court  lawyers,  who  have  been  hangers-on 
around  the  court  for  many  years,  carry  on  their  work  with  a  peculiar 
kind  of  privileged  seclusion.  When  the  survey  attempted  to  look  into 
the  operations  of  these  professional  criminal  lawyers,  it  was  found  that 
no  record  is  kept  of  attorneys  in  cases  before  the  criminal  branch  of  this 
court,  and  that  no  statistical  data  could  be  secured  as  to  the  actions  of 
these  attorneys. 

Some  of  these  lawyers  were  formerly  police  prosecutors,  in  which 
capacity  they  made  the  acquaintance  of  habitual  offenders  and  pro- 
fessional crooks.  Some  are  city  councilmen,  with  a  voice  as  to  the 
salaries  of  certain  court  attendants  and  a  control  over  votes  which  a 
weak  judge  cannot  overlook.  Others  are  connected  in  various  ways 
with  people  of  political  importance.  They  seek  in  every  way  to  make 
themselves  useful  and  friendly  to  attaches  of  the  court.  Inefficient 
and  overworked  court  oflacials  learn  to  depend  upon  the  cheerfully  given 

[211 


assistance  of  these  men.  Subsequently,  when  favors  are  available, 
these  friendly  gentlemen  are  not  forgotten.  Frequently  these  attorneys 
represent  a  special  kind  of  offender — one  will  represent  prostitutes, 
another  pickpockets,  and  another  suspicious  persons.  They  work  in 
cooperation  with  professional  bondsmen,  and  until  recently  combined 
their  trade  with  that  of  the  professional  bondsman.  That  these  men 
operate  with  a  considerable  amount  of  success  is  indicated  by  a  table 
contained  in  the  survey,  indicating  the  dispositions  of  cases  of  well- 
known  criminals,  some  of  whom  were  notorious  offenders,  but  all  of 
whom  were  represented  by  practised  police  court  lawyers.  This  tabu- 
lation indicates  that  in  one-third  of  the  cases  nolles  were  secured — a 
larger  proportion  than  can  be  found  in  the  ordinary  run  of  cases. 

The  Office  of  the  Clerk 
The  present  clerk  of  the  Municipal  Court  is  an  elective  official,  chosen 
for  fom*  years  by  the  voters  of  the  city.  One  of  the  significant  things 
is  that,  on  account  of  the  passage  of  the  city  manager  amendment  at 
the  election  in  1921,  it  will  be  necessary  to  determine  some  new  way  of 
electing  the  Municipal  Court  clerk.  Many  who  are  interested  in  court 
reform  hope  that  some  method  of  appointment  will  be  chosen  rather 
than  the  present  elective  system.  The  survey  found  that  the  present 
clerk  and  staff  have  too  largely  permitted  the  old  system  of  record  keep- 
ing, which  existed  before  the  establishment  of  the  Municipal  Court,  to 
continue  in  operation  under  new  and  infinitely  enlarged  responsibilities. 
Both  in  the  survey  report  on  criminal  courts  and  on  prosecution  there  is 
an  extended  discussion  of  the  cumbersome  and  inadequate  system  which 
now  obtains.  The  maintenance  of  such  an  inadequate  system  is  a  very 
great  adjunct  to  the  police  court  hangers-on,  the  shysters,  and  the  pro- 
fessional bondsmen.  The  activities  of  these  parasites  depend  to  a  large 
extent  upon  the  assurance  that  they  will  leave  no  tracks  behind  them 
and  that  the  watchful  interest  of  the  press  and  the  pubhc  will  be 
prevented  from  taking  action  because  of  a  lack  of  information.  In  Mr. 
Bettman's  report  on  prosecution  reference  is  made  to  an  improved 
system  of  record  keeping,  and  Mr.  Bettman  has  filed  with  the  Founda- 
tion material  which  would  make  such  a  system  possible  of  operation. 

THE  CRIMINAL  BRANCH  OF  THE  COMMON  PLEAS  COURT 

Organization  and  Jurisdiction 
The  Common  Pleas  Court  is  the  center  of  the  judicial  system  of  the 
state  of  Ohio.     There  are  12  judges  of  the  Common  Pleas  Court  of 

[22  1 


Cuyahoga  County,  holding  office  for  six  years.  Their  salary  is  $8,000 
per  year.  This  court  has  in  its  criminal  jurisdiction  all  felonies  upon 
indictment  of  a  grand  jury  and  other  offenses,  where  exclusive  jurisdic- 
tion is  not  given  to  an  inferior  court.  It  therefore  disposes  of  all  the 
serious  cases  and  most  of  the  misdemeanors  from  the  country  districts 
of  the  county.  When  the  survey  was  made,  four  of  the  Common  Pleas 
judges  were  sitting  regularly  in  the  criminal  division.  The  assignments 
to  the  criminal  division  are  made  by  a  system  of  rotation,  although  it  is 
common  knowledge  that  judges  whose  election  is  approaching  are  al- 
lowed, through  arrangements  with  other  judges,  to  sit  in  the  criminal 
courts.  It  is  also  very  common  for  new  judges  immediately  after  elec- 
tion to  be  allowed  to  go  there.  It  may  be  said  as  a  general  proposition 
that  all  judges  who  are  approaching  election  have  the  opportunity  to 
sit  in  the  more  spectacular  and  "newsful"  atmosphere  of  the  criminal 
court. 

The  physical  arrangements  are  a  handicap  to  efficiency.  Two  court- 
rooms are  in  the  old  county  courthouse  on  the  public  square.  These 
rooms  are  dingy  and  inadequately  provided  with  equipment  for  taking 
care  of  the  people  concerned  in  the  cases  and  the  spectators.  The  de- 
corum is  a  great  improvement  over  the  Municipal  Court,  although  the 
formality  that  is  present  in  some  courts  in  the  United  States  is  wholly 
lacking.  The  survey  states  that  "it  is  an  exaggeration  to  say,  as  did  the 
late  Judge  Foran,  that  'the  courts  are  run  like  bar  rooms.'  It  is  perhaps 
true  that  the  court-room,  in  dignity  of  atmosphere,  does  not  rise  above  a 
salesman's  display  room  in  a  hotel." 

The  Need  of  an  Executive  Head 
The  only  provision  for  executive  leadership  in  the  Common  Pleas 
Court  is  the  system  of  designating  one  of  the  judges  as  presiding  judge. 
This  presiding  judge  holds  his  title  for  one  term,  and  is  vested  with  some 
slight  power  in  the  administration  of  the  court.  However,  very  little, 
power  is  actually  given  him,  and  it  is  literally  true  that  the  description  of 
Artemus  Ward's  army,  which  was  composed  entirely  of  officers,  with 
everyone  superior  to  every  one  else,  is  applicable  to  the  Common  Pleas 
Court.  Perhaps  the  most  significant  feature  of  this  lack  of  executive 
leadership  is  the  present  wide-spread  feeling  that  the  judges  are  not 
performing  a  full  measure  of  service.  They  are  responsible  to  no  one  but 
themselves  and  the  general  public  for  their  actions.  The  survey  cites  a 
comparison  between  this  court  and  the  Municipal  Court,  which  has  had 
a  chief  justice  since  1912.  One  of  the  functions  of  the  chief  justice  of  the 
Municipal  Court  is  to  keep  a  record  of  the  time  actually  spent  by  judges 

r231 


on  the  bench.  This  function  Judge  McGannon,  before  his  difficulties 
began,  performed  with  eflBciency.  He  not  only  worked  hard  himself,  but 
kept  his  associates  busy.  A  very  interesting  chart  was  compiled  by  the 
survey,  which  shows  that  the  lack  of  an  executive  head  of  the  Municipal 
Court  after  Chief  Justice  McGannon  became  involved  in  the  Kagy  mur- 
der case,  caused  the  court  docket  immediately  to  become  badly  clogged. 
The  court  itself  fell  far  behind  in  its  work.  The  statistics  compiled  also 
indicate  that  during  the  period  when  Judge  McGannon  was  on  trial  for 
his  life,  and  consequently  paid  no  attention  to  the  business  of  the  court, 
the  number  of  hours  put  in  by  the  average  judge  was  much  less  than 
when  the  Chief  Justice  was  actual^  on  the  job. 


A  BUSINESS  WITHOUT  A  HEAD 

'*  f  §  ^HE  Common  Pleas  Court  disposes  of  more  than  3,000 
I  criminal  cases  and  10,000  civil  actions  a  year.  In  addi- 
tion to  the  12  judges,  it  has  a  varying  supervisory  con- 
trol over  the  clerk's  office,  the  two  assignment  commissioners' 
offices,  the  jury  commissioners,  the  jury  and  grand  jury,  bailiff's 
office,  and,  including  the  judges,  comprises  a  salary  budget  of 
over  $375,000  per  year.  This  great  enterprise,  organized  for  the 
business  of  administering  justice,  is  without  any  executive  head 
whatsoever." 

— Criminal  Justice  in  Cleveland,  p.  299 


CRIMINAL  JUSTICE  AND  THE  POOR 

In  Cleveland,  assigned  counsel  play  a  large  part  in  the  administration 
of  justice.  Counsel  appointed  to  defend  an  indigent  person  receive  10 
dollars  for  the  preparation  of  the  case  and  10  dollars  up  to  50  dollars  a 
day  in  court.  A  larger  sum  is  allowed  in  capital  cases.  In  1920  assigned 
counsel  were  paid,  in  all,  the  sum  of  $32,500.  This  is  about  75  per  cent, 
as  much  as  was  paid  for  the  maintenance  of  the  entire  prosecutor's  office 
for  salaries  in  the  same  year.  Thus  we  are  already  paying  out  as  much 
for  "pubhc  defenders"  as  we  are  for  public  prosecutors.  And  we  are 
probably  securing  much  less  for  our  money.  There  is  no  fixed  policy  with 
respect  to  appointing  these  assigned  counsel.  As  a  rule,  very  young 
attorneys  or  rather  unsuccessful  men  are  appointed.  In  important  cases, 
however,  the  court  appoints  abler  men,  and  some  eminent  lawyers  have 
served  on  such  appointments.    However,  as  a  rule,  the  appointing  of 

[24  1 


counsel  is  not  taken  very  seriously.  The  question  of  adequate  represen- 
tation for  the  indigent  defendant  is  of  very  great  importance.  The  sur- 
vey recommends  very  strongly  the  public  defender  system  as  a  substitute 
for  the  assigned  counsel  system. 

THE  COUNTY  CLERK  OF  COURTS 

The  survey  states  that  the  office  of  the  county  clerk  of  courts  was, 
when  the  survey  was  made,  the  most  satisfactory  office  connected  with 
the  administration  of  criminal  justice  in  Cleveland.  A  comprehensive 
record  is  kept,  with  all  the  information  necessary  to  insure  public  respon- 
sibility for  every  case  passing  through  the  court. 

THE  PROSECUTORS  AND  THEIR  WORK 

The  Prime  Importance  of  Prosecution 
Prosecution  in  the  criminal  courts  of  Cuyahoga  County  is  conducted  in 
the  main  by  two  prosecutors'  offices.  The  municipal  prosecutors  have 
charge  of  the  prosecution  of  cases  in  the  Municipal  Court — misdemean- 
ors, violations  of  city  ordinances,  and  preliminary  hearings  of  felony 
cases.  The  county  prosecutor  and  his  assistants  have  charge  of  cases 
before  the  grand  jury  and  in  the  Common  Pleas  Court.  Their  work  is  in 
the  main  concerned  with  felony  cases. 

It  is  not  difficult  to  see  that  efficient  and  honest  prosecution  con- 
stitutes the  very  essence  of  an  adequate  administration  of  the  criminal 
law.  If  cases  are  improperly  prepared,  or  if  they  are  carelessly  presented, 
the  offender  has  every  opportunity  to  escape  the  consequences  of  his  act. 
The  prosecutor  has  great  discretionary  power :  he  may  keep  cases  out  of 
court  by  a  simple  refusal  to  prosecute.  The  court  must  largely  depend 
upon  his  recommendations  to  nolle  a  case — so  much  so  that  in  the  survey 
' '  nolleing ' '  is  usually  referred  to  as  a  function  of  the  prosecutor,  whereas  it 
is  technically  a  function  of  the  court.  Moreover,  the  prosecutors'  offices, 
especially  that  of  the  municipal  prosecutor,  is  a  clearing-house  for  the 
troubles  of  a  great  city.  Thousands  of  people  call  at  the  prosecutor's 
offices  yearly  who  are  not  involved  in  the  administration  of  justice. 
They  come  with  petty  complaints  of  all  sorts,  as  well  as  seeking  in- 
formation concerning  real  violations  of  the  law.  The  great  bulk  of  the 
population  receives  its  impressions  concerning  the  speed,  certainty,  fair- 
ness, and  incorruptibility  of  justice  at  these  offices. 

Case  Mortality 
Another  way  of  indicating  the  large  part  played  by  the  prosecutors  in 
criminal  justice  is  through  an  analysis  of  what  happens  to  all  the  cases 

[25] 


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[26] 


which  come  into  the  system  for  the  administration  of  justice.  Such  an 
analysis  made  by  the  survey  shows  that  a  large  part  of  the  administration 
of  justice  is  carried  on  wholly  outside  the  courts  themselves.  Dia- 
grams 5, 6,  and?  are  based  upon  a  tabulation  of  cases  for  the  years  1919 
and  1920: 


4  ffullty  of   lesser 
offenea  or  dlsmlssej 


MUNICIPAL  COURT 
100   CASES 


12  discharged 
bs  not  gvillty 


10  nolled  and 
"no  papers" 


74  'bound  over 
to  Grand  Jury 


74  CASES 
BOUND  OVEK 


16  no  bill 

by 
Grar.d  Jury 


9  nolled  by 
prosecutor 


5  acquitted  by  Jurj 


7  otherwise  disposed 
of  without  eentence 


37  guilty 
and  sentenced 


37  SEMTEICES 


8  sentences 
suspended 


29  sentences 
•xAcuted 


29   SENTENCES 
EXECUTED 


7  In^jrisonraent 
In  workhouse 


15  Imprisonment 
In  penitentiary 
or  reformatory 


Diagram  7. — What  happened  to  each  100  felony  cases  beginning  in  the  Municipal 
Courts,  1919 

THE  MUNICIPAL  PROSECUTOR 

Personnel 

The  force  of  the  municipal  prosecutor's  office  consists  of  the  chief 

prosecutor  and  six  assistants.    These  officials  are  appointed  by  the  city 

director  of  law,  who  is,  at  least  nominally,  the  chief  municipal  prosecutor. 

The  chief  prosecutor  has  nominal  control  over  the  other  prosecutors, 

[271 


although  at  the  time  of  the  survey  this  control  was  not  permitted  to  be 
vigorously  exercised.  The  survey  bases  its  estimate  of  the  quality  of  the 
personnel  of  the  prosecutor's  office  upon  the  replies  which  it  received  from 
a  questionnaire  sent  to  all  members  of  the  bar  in  Cleveland.  The  general 
opinion  was  expressed  in  May,  1921,  that  the  men  were  selected  for 
pohtical  reasons  and  that  only  one  or  two  members  of  the  office  were 
capable  of  performing  the  work.  The  most  severe  criticism  made  in  the 
survey  concerning  the  personnel  of  the  office  was  of  the  general  practice 
of  giving  out  appointments  to  the  prosecutor's  office,  seemingly  for  no  rea- 
son except  to  satisfy  the  requirements  of  large  racial  or  national  groups  in 
the  community.  Thus  we  have  men  appointed  to  the  prosecutor's  office 
not  because  they  are  experienced  in  the  law  or  in  meeting  a  certain  class 
of  cases  that  come  into  the  prosecutor's  ofl5ce,  but  because  they  are  Poles, 
Czechs,  Jews,  Italians,  or  Irish.  This  practice,  which  Mr.  Bettman  calls 
"the  trihalization  of  prosecution,"  has  been  characteristic  of  this  ofl&ce  from 
almost  the  beginning.  It  was  found  by  the  survey  that  the  prosecutors, 
while  their  work  was  conducted  with  great  despatch  and  confusion  during 
a  part  of  the  day,  were  not  in  evidence  during  that  period  which  in 
private  business  constitutes  a  full  day's  work. 

The  Business  of  Prosecution 
The  survey  thus  describes  the  absence  of  business  methods  and  equip- 
ment in  the  prosecutor's  office.  ''The  office  of  the  prosecuting  attorney 
of  the  Municipal  Court  handles  about  75,000  criminal  matters  a  year  and 
actually  prosecutes  26,000  criminal  cases  in  a  year.  Yet  that  office  has 
no  managing  clerk  or  any  other  clerk;  it  has  no  files  and  no  records;  it 
has  no  stenographers;  it  drops  cases  with  or  without  filing  a  prosecution, 
entirely  without  any  statement  or  record  of  reasons  for  this  action.  No 
record  is  made  of  information  which  it  receives,  so  that  the  particular 
assistant  who  tries  the  case  has  in  his  hands  no  data  and,  with  rare  excep- 
tions, must  trust  to  luck  as  to  what  the  witness  will  say.  There  is  no 
specialization  of  work.  There  is  none  of  the  efficiency  of  organization 
characteristic  of  a  large  modern  private  law  office.  It  is  all  largely  a 
game  of  chance.  The  record  sj-stem  of  the  criminal  branch  of  the 
Municipal  Court  is  inadequate  and  inefficient,  so  that  it  would  be  impos- 
sible for  the  public  or  even  the  chief  prosecutor  actually  to  ascertain  or 
appraise  the  work  of  the  assistants.  Observation,  made  by  the  survey, 
of  prosecutors  conducting  cases  before  the  court  indicated  that  their 
work  is  habitually  casual,  careless,  perfunctory,  and  inefficient.  There 
is  a  dangerous  laxity  in  the  care  of  affidavits.  An  affidavit  remains  in  the 
hands  of  the  prosecutor  who  prepared  it  until  he  finds  it  convenient  to 

[28] 


carry  it  to  the  office  of  the  clerk  of  the  court.  The  carelessness  with 
which  they  are  handled  furnishes  opportunity  for  the  mysterious  dis- 
appearance of  affidavits  and  such  disappearances  take  place  occasion- 
ally."    (Pages  114-120.) 

THE  COUNTY  PROSECUTOR'S  OFFICE 

Personnel 
At  the  time  the  survey  was  made  the  county  prosecutor's  office  had 
seven  assistants  on  the  criminal  side,  in  addition  to  the  prosecutor  him- 
self. These  assistants  were  all  appointed  on  January  1,  1921,  which  indi- 
cates the  fact  that  when  the  political  complexion  of  the  prosecutor's 
office  changes,  the  entire  force  changes.  Of  the  seven  assistants,  one  had 
been  a  member  of  the  bar  for  twenty-one  years,  while  the  remaining  six 
averaged  about  four  years  of  opportunity  for  private  practice.  Accord- 
ing to  the  judgment  of  the  92  lawyers  who  replied  to  the  questionnaire 
previously  mentioned,  only  two  expressed  an  opinion  that  the  prosecu- 
tors were  possessed  of  the  necessary  ability  and  competence. 

The  Organization  and  Operation  of  the  County  Prosecutor's 

Office 

In  general  the  county  prosecutor  and  his  assistants  take  no  part  in 
investigating  the  crime  or  molding  the  proof.  He  has  no  machinery 
other  than  his  busy  attendants  and  a  single  "county  detective,"  a  gen- 
eral utility  man  for  such  service.  He  pits  what  Mr.  Bettman  in  the  sur- 
vey calls  "serial  unpreparedness"  against  the  carefully  prepared  case  of 
the  defendant's  lawyer.  He  takes  the  proof  in  the  way  it  has  been  pre- 
pared by  the  municipal  prosecutor,  making  the  best  of  what  he  gets, 
except  that  in  more  serious  cases  he  attempts,  sometimes  months  after 
the  crime  is  committed,  to  remedy  the  defects. 

JURIES  IN  CUYAHOGA  COUNTY 

"Jurors  recruited  from  the  caverns  of  Ali  Baba  in  the  desert,"  re- 
marked the  oldest  judge  on  the  bench  of  this  county,  with  the  hearty 
approval  of  a  large  audience  of  lawyers.  This  seems  to  be  a  characteristic 
expression  of  the  general  dissatisfaction  with  the  average  juries  of  the 
county,  a  judgment  which  is  attested  by  the  great  number  of  convictions 
set  aside  because  of  poor  jury  work,  a  600  per  cent,  increase  in  acquittals 
in  seven  years,  and  an  unwarranted  number  of  disagreements. 

In  1915  the  old  method  of  jurors,  "hand  picked"  for  political  and 
other  purposes,  was  discarded  for  what  was  intended  to  be  a  thoroughly 

[29] 


impartial  carrying  out  of  the  theory  of  jury  service.  Prospective  jurors 
are  selected  by  an  impartial  method  from  the  polling  list.  They  are 
summoned  by  mail  and  examined.  Their  names  are  then  placed  in  the 
wheel  and  are  drawn  therefrom  at  the  request  of  the  court. 

The  system  is  in  charge  of  the  jury  commissioners,  who  are,  by  recent 
action  of  the  court,  the  same  persons  as  the  assignment  commissioners. 
The  survey  is  convinced  that  this  combination  of  offices  was  wise  and 
should  produce  some  improvement. 

Avoidance  of  Duty 

Statistics  set  forth  by  the  survey  indicate  certain  startling  facts  con- 
cerning the  attitude  of  citizens  of  intelligence  and  means  toward  the  duty 
of  jury  service.    The  most  important  of  these  are: 

1.  Citizens  living  in  certain  "well-to-do  suburbs"  more  commonly 
ignored  the  summons  than  the  less  fortunate  (from  the  economic  point 
of  view)  in  Wards  11  and  14.  Those  whose  ignorance  might  excuse  them 
for  not  responding  make  a  better  showing  than  the  "substantial  citi- 
zens" who  knew  too  much  to  heed  the  summons. 

2.  The  "exclusive"  suburbs  seem  to  be  much  more  unhealthful  than 
Wards  11  and  14,  for  a  larger  percentage  of  these  citizens  were  excused 
for  "illness"  than  those  living  in  the  more  congested  areas. 

3.  The  residents  of  the  suburbs  were  "away"  or  received  summonses 
"too  late"  in  a  larger  proportion  than  the  more  shifting  population  at  the 
heart  of  the  city. 

These  facts  are  a  serious  indictment  of  those  sections  of  society  which 
are  commonly  the  sharpest  critics  of  government. 

The  Quality  of  Jury  Personnel 

A  compilation  of  the  occupations  of  jurors  for  two  months  revealed 
in  general  that  the  personnel  of  the  juries  of  this  county  is,  in  occupa- 
tions and  probably  in  general  intelligence,  about  a  cross-section  of  Cleve- 
land's population.  But  this  is  not  adequate  for  the  exacting  duties  im- 
plied in  jury  service.  Jurors  should  be  "judicious  and  discreet  persons 
.  .  .  with  integrity  and  intelligence,  with  some  education  and  an 
unwarped  outlook  on  life.  Such  men  are  not  usually  found  among  the 
lowest  or  the  highest  walks  of  life.  Those  who  have  not  the  ability  to 
rise  to  some  extent,  or  are  embittered  by  the  experience  of  poverty, 
make  equally  bad  jurors  with  the  very  rich,  whose  property  interests 
tend  to  bias  judgment." 

It  is  shown,  moreover,  that  many  who  are  unemployed  seek  and  ob- 
tain extended  service  on  juries.     Commendable  as  is  any  method  of 

f30] 


mitigating  unemployment,  it  should  not  be  done  at  the  expense  of  the 
adequate  performance  of  a  high  civic  responsibihty. 


SIDE  EXITS  FROM  THE  TEMPLE  OF  JUSTICE 

An  examination  of  Diagrams  5,  6,  and  7  reveals,  in  a  very  simple 
manner,  the  great  importance  in  the  modern  administration  of  criminal 
justice  of  certain  procedural  methods  of  escape  from  the  toils  of  the  law, 
other  than  acquittal  after  a  trial  in  open  court.  Diagrams  5  and  6  show 
that  of  each  100  cases  of  misdemeanors,  or  violations  of  city  ordinances, 
a  total  of  about  45,  or  nearly  half,  were  nolled  or  sentence  was  wholly  or 


There  is  no  law  without  a  loophole. 

— Proverb 


partly  suspended.  Diagram  7  shows  that  of  each  100  felony  cases  a  total 
of  26  were  disposed  of  in  ways  other  than  through  a  hearing  before  the 
grand  jury  or  a  trial  in  court.  Thus,  we  may  venture  that  certain  pro- 
cedural loopholes  of  escape,  such  as  are  described  in  the  following  para- 
graphs, have  come  to  such  prominence  as  to  account  for  more  than  one- 
fourth  of  all  cases  started  in  the  criminal  courts.  The  importance  of 
examining  these  ways  of  escaping  from  the  law  is  thus  made  sharply 
evident. 

"No  Papers" 

When  an  arrest  is  made  prior  to  the  issuance  of  an  affidavit,  a  case 
goes  upon  the  docket  and  is  called  in  court.  If  the  prosecutor  decides 
then  that  the  provable  facts  do  not  justify  a  hearing  in  court,  he  tells  the 
court  that  there  are  "no  papers"  and  that  is  the  end  of  the  case.  This 
"no  papering"  procedure  has  no  statutory  basis  and  is  not  recognized 
in  common  law  criminal  procedure.  There  are  no  safeguards  thrown 
about  its  exercise,  and,  as  actually  practised  in  the  Municipal  Court  in 
Cleveland,  the  court  hears  nothing  about  the  case  and  does  nothing  about 
the  case  but  enter  "no  papers"  on  the  docket. 

Pleas  of  Lesser  Offense 

The  Ohio  law  permits  the  Municipal  Court,  in  cases  where  felony  is 

charged,  to  accept  a  plea  of  a  misdemeanor  and  to  discharge  the  felony 

case  and  proceed  with  the  misdemeanor  charge.    This  very  important 

power  does  not  have  any  safeguards  surrounding  it,  and  the  survey  states 

[31] 


that  the  present  practice  of  the  prosecutor's  office  in  handling  such  cases 
is  as  loose  and  haphazard  as  in  the  case  of  nolles. 

Suspended  Sentences  or  "Bench  Paroles" 
The  very  great  importance  of  the  suspended  sentence  in  Cleveland 
courts  is  indicated  by  the  fact  that  from  10  to  30  per  cent,  of  felony  cases 
receive  suspended  sentences,  and  in  offenses  less  than  felonies  in  the 
Municipal  Court  35  per  cent,  receive  suspended  sentences.  The  whole 
practice  regarding  the  suspension  of  sentences  is  loose.  Much  of  it  is  of 
doubtful  validity.  The  practices  intended  to  safeguard  it  are  by  no 
means  commonly  observed.  Sentences  of  imprisonment  are  suspended 
without  probation,  and  sentences  of  fines  are  suspended  without  a  con- 
dition concerning  the  payment  of  the  fine.  The  theory  of  the  suspended 
sentence,  i.  e.,  the  idea  of  a  sword  hanging  over  the  defendant,  is  under 
present  practices  nothing  but  a  theory.  With  rare  exceptions  the  sus- 
pended sentence  is  promptly  forgotten  by  everybody,  and  if  the  defen- 
dant comes  back  into  court  upon  a  new,  or  even  the  same,  charge,  the 
old  sentence  is  very  seldom  remembered. 

Bail 

Among  the  most  commonly  condemned  features  of  criminal  justice 
in  Cleveland  are  certain  irregularities  which  have  grown  up  in  connec- 
tion with  the  giving  of  bail  bonds.  There  are  several  steps  in  the  process 
of  justice  where  bail  is  given.  A  bond  can  be  given  immediately  after 
arrest,  to  secure  appearance  in  Municipal  Court.  In  misdemeanor  cases 
the  amount  of  this  is  fixed  by  the  clerk  of  the  court ;  in  felony  cases,  by 
the  judge.  Later,  if  at  the  hearing  the  defendant  is  convicted  and 
appeals,  or  if  he  is  bound  over  to  the  grand  jury,  he  again  gives  bond,  the 
amount  of  which  is  fixed  by  the  judge.  Thereafter  the  amount  of  bonds 
is  fixed  by  the  Common  Pleas  judge. 

The  most  serious  evils  connected  with  bail  bonds  are : 

(a)  The  professional  bondsman,  the  associate  of  the  ''runner"  and 
"shyster"  lawyer,  who  makes  a  business  of  going  on  bail  bonds. 

(6)  The  illogical  variation  in  the  amounts  required. 

(c)   The  inadequacy  of  sureties. 

{d)  Failure  to  secure  judgment  and  to  collect  on  forfeited  bonds. 
Statistics  compiled  by  the  state  auditor  indicate  that,  of  the  total  amount 
of  bail  bonds  forfeited  from  August  26,  1916,  to  May  27,  1919,  only  0.6 
per  cent,  was  collected.  The  cost  of  collection  was  equal  to  the  amount 
collected,  and  there  was  little  if  any  effort  made  to  issue  executions  on 
judgments  rendered. 

[32] 


Suggestions  to  correct  the  bail  bond  evil  are : 

(a)  The  creation  of  the  office  of  bail  bond  commissioner  by  the 
legislature  in  1921  was  largely  brought  about  by  the  efforts  of  the  Bar 
Association,  This  office  began  its  work  in  July,  1921.  Its  chief  func- 
tion is  to  pass  upon  the  qualifications  of  sureties  and  to  enforce  forfeited 
bonds. 

In  March,  1922,  the  supreme  court  declared  this  statute  unconsti- 
tutional, but  it  is  still  operating  under  the  power  of  the  court  to  create 
deputy  bailiffs  of  the  court. 

(6)  The  new  legal  requirement  of  cash  bail  (G.  C.  1579-20)  has  had 
some  effect  upon  the  evil. 

(c)  The  Municipal  Court  several  years  ago  sought  to  restrict  the 
operation  of  the  professional  bondsman  by  passing  a  rule  providing  for 
personal  bond  without  surety.  The  survey  points  out,  however,  that 
the  clerks  in  charge  have  largely  nullified  the  benefit  by  requiring  some 
one  to  "vouch"  for  the  defendant.  Thus  the  professional  bondsman 
becomes  a  professional  "voucher." 

The  Nolle  Prosequi 

This  motion,  commonly  called  "nolle,"  means  literally  and  in 
practice,  "To  be  unwilling  to  prosecute."  It  is  made  by  the  prosecutor 
and  allowed  or  overruled  by  the  judge.  The  Ohio  law  provides  that  the 
county  prosecutor  shall  not  enter  a  "nolle"  "without  leave  of  the  court, 
or  good  cause  shown,  in  open  court."  There  is  no  such  provision  for  the 
Municipal  Court.  In  actual  practice  the  granting  of  a  "nolle"  is  almost 
entirely  within  the  discretion  of  the  prosecutor,  as  the  judge  usually, 
without  question,  takes  the  word  of  the  prosecutor.  There  has  been  a 
rather  startling  increase  in  the  frequency  with  which  this  motion  has 
been  used  since  1918  (see  diagram  on  p.  13).  The  survey  indicated 
that  14.27  per  cent,  of  felony  cases  which  had  successfully  passed  the 
two  preliminary  examinations  were  nolled  in  the  Common  Pleas  Court. 
Occasionally  there  is  what  is  known  as  a  "blanket  nolle,"  in  which 
several  hundred  "dead"  cases  are  thrown  out  at  once. 

The  chief  criticism  of  the  survey  regarding  the  practice  of  "nolleing" 
cases  is  the  careless  manner  in  which  it  is  exercised.  The  prosecutors 
ask  for  and  obtain  nolles  with  little  or  no  explanation  to  the  court.  No 
record  is  kept,  and  in  most  cases  even  the  prosecutors  fail  to  remember 
the  reason  which  prompted  their  action.  This  gives  an  opportunity 
for  all  sorts  of  irregularities  and  for  at  least  the  appearance  of  "inside 
influence  with  the  prosecutor." 

[33] 


The  Motion  in  Mitigation 

In  January,  1921,  liquor  cases  resulting  in  314  fines  were  filed  in  the 
Municipal  Court.  Thus  the  uninitiated  pubKc  might,  by  mathematical 
process,  determine  that  $101,650  would  come  into  the  treasury.  But 
in  the  name  of  a  mysterious  legal  "motion"  $42,135  of  this  amount  was 
taken  from  these  fines.  Of  the  314  cases,  "motions  in  mitigation"  were 
made  in  193  cases  and  allowed  in  114  cases.  Thus,  through  the  magic 
of  this  "motion  in  mitigation,"  a  judge  may  receive  public  approval  for 
severity  and  still  receive  the  grateful  appreciation  of  a  large  number  of 
"victims." 

Not  only  does  this  motion  provide  an  opportunity  for  official  hypoc- 
risy of  a  high  order,  but  it  adds  again  to  the  law's  delay.  In  the  cases 
referred  to,  an  average  of  15.43  days  was  required  to  overrule  a  motion 
in  mitigation  and  an  average  of  35.15  days  to  grant  it.  Delay  always 
favors  the  party  who  can  keep  alive  his  motion  in  mitigation. 

Perjury 

It  is  perhaps  inappropriate  to  include  perjury  in  the  Ust  of  pro- 
cedural means  of  escaping  the  penalty  of  the  law.  It  has,  however, 
become  so  common  and  so  seemingly  harmless  a  means  of  escape  that 
it  ranks  with  other  more  regular  and  legitimate  methods. 

The  whole  story  of  the  decline  in  character  of  criminal  justice  is  told 
by  the  statistics  on  perjury  prosecutions  in  Cuyahoga  County,  in  cases 
begun  in  1919.  Out  of  3,000  cases  heard  in  that  year,  only  27  were  for 
"offenses  against  public  justice."  Of  these,  20  were  for  bribery  and 
seven  for  perjury.  This  means  that  less  than  1  per  cent,  of  the  felony 
cases  that  year  were  for  a  crime  which  both  bench  and  bar  admit  is 
common.  Of  the  27  cases  which  were  brought  to  light,  only  two  were 
found  or  pleaded  guilty.  Of  these,  one  was  "bench  paroled,"  leaving 
one  sentence  executed.  The  survey  impressively  notes:  "Behind  the 
McGannon  trial,  therefore,  is  a  community  which  recognizes  the  preva- 
lence of  crimes  against  public  justice,  but  seeks  to  vindicate  the  law  in 
only  a  handful  of  cases  in  a  year  for  such  offenses  and  allows  all  but  one 
offender  to  escape. 

"The  drugged  state  of  the  public  conscience  is  indicated  by  Petition 
No.  188262,  filed  by  one  of  those  indicted  in  the  McGannon  perjury 
investigation,  against  Judge  McGannon  for  balance  due  for  services  '  in 
influencing  Mary  Neely  to  change  her  attitude  in  her  testimony  in  a 
lawsuit  wherein  he  was  charged  with  murder.'  An  attempt  was  made  to 
withdraw  this  petition  upon  the  indictment  of  the  petitioner  for  the 
crime  set  out  in  his  own  petition." 

[34] 


SUMIVIARY   OF   RECOxMMENDATIONS   FOR   JUDICIAL   AD- 
MINISTRATION AND  PROSECUTION 

Single  Unified  Criminal  Court 
The  survey  strongly  recommends  that  Cleveland  estabhsh  a  single 
unified  criminal  court  similar  to  that  which  has  been  established  and  is 
successfully  operating  in  Detroit.  This  would  involve  the  combination 
of  the  criminal  jurisdiction  of  both  Common  Pleas  and  Municipal  Courts. 
It  would  permit  the  very  greatly  needed  unification  of  the  prosecution 
processes  into  one  office  and  go  far  toward  eliminating  the  lost  motion 
which  exists  because  of  the  division  of  jurisdiction  between  the  courts. 
This  step  would  be  revolutionary  and  would  require  a  considerable 
amount  of  legislation.  The  report  suggests  that  in  order  to  accomplish 
the  needed  results,  the  new  court  would  not  be  needed  at  once,  and  that 
all  criminal  business  of  the  Municipal  Court  could  be  transferred  to  the 
existing  sessions  of  the  Common  Pleas  Court. 

A  Chief  Justice  for  the  Common  Pleas  Court 
The  survey  has  pointed  out  very  definitely  the  unsatisfactory  con- 
ditions which  result  from  the  lack  of  an  administrative  head  in  the 
Common  Pleas  Court.  This  is  a  quite  generally  recognized  need,  and 
the  Bar  Association  prepared  a  bill  for  submission  to  the  legislature 
in  1921,  which  bill,  however,  was  not  passed.  This  reform  is  essential 
to  the  improvement  of  business  in  the  Common  Pleas  Court. 

Changes  in  the  Mode  of  Electing  Judges 
The  survey  does  not  go  so  far  as  to  recommend  the  abohtion  of  the 
present  elective  system  of  judges,  but  recommends  a  great  change  in 
the  method  now  in  practice.  It  is  deemed  by  the  survey  impossible, 
with  the  present  state  of  public  opinion,  to  adopt  the  appointive  system 
of  selecting  judges.  However,  it  is  probable  that  many  of  the  present 
evils  can  be  eliminated  by  providing  more  protection  for  a  judge  already 
on  the  bench.  Therefore,  the  survey  recommends  that  judges  should 
be  elected  for  a  first  term  of  six  years,  at  the  end  of  which  they  should 
run  for  reelection  for  a  longer  term,  and  that  in  each  successive  campaign 
for  reelection  they  should  run  against  their  o^vn  record  and  not  against 
a  group  of  other  candidates.  Thus  the  question  to  be  decided  when  a 
judge  completes  his  term  of  office  is,  "Shall  he  be  retired  or  shall  he  be 
retained?"  In  the  event  of  the  retirement  of  a  judge,  a  special  election 
in  which  he  would  not  be  a  candidate  would  be  held. 

[35] 


A  Judicial  Council 
The  survey,  moreover,  recommends  that  a  judicial  council  be  or- 
ganized,— a  perpetual  body, — consisting  of  not  less  than  five  nor  more 
than  15  judges,  appointed  by  the  chief  justices,  and  holding  office  during 
their  approval.  This  would  become  an  advisory  body  for  the  judicial 
business  of  the  court. 

The  Elimination  of  Unnecessary  Steps  in  Prosecution 
The  survey  recommends  very  strongly  that  the  grand  jury  be  dis- 
pensed with,  except  in  cases  where  extraordinary  situations  require  a 
special  inquiry.     The  grand  jury  has  been  eliminated  in  many  juris- 
dictions, and  the  matter  is  no  longer  one  of  conjecture  or  experiment.^ 

Another  way  of  shortening  the  procedure  of  felony  cases — already 
in  practice  to  some  extent — is  by  bringing  cases  directly  to  the  grand  jury 
without  a  preliminary  hearing  in  the  police  court.  This  preliminary 
hearing  in  police  court  may  be  demanded  by  any  accused  person,  but 
in  practice  it  is  possible  to  carry  cases  directly  to  the  grand  jury  by 
presentment  instead  of  the  process  of  binding  them  over  from  the  lower 
court. 

Business  Methods  in  Prosecution 
The  survey  describes  in  detail  the  kind  of  organized  agency  of  in- 
quiry and  prosecution  a  prosecutor's  office  should  be.  Steps  should  be 
taken  to  eliminate  the  present  system  of  careless  handling  of  affidavits 
in  the  absence  of  files,  records,  or  dockets,  the  absence  of  stenographic 
records  of  testimony  of  preliminary  examination,  and  the  entire  absence 
of  scientific  and  thoroughgoing  methods  of  investigating  crimes.  Ade- 
quate methods  for  handling  large  amounts  of  business  should  be  in- 
stalled in  each  of  the  prosecutors'  offices.  A  system  of  record  keeping 
should  be  established  and  maintained.  There  should  be  a  chief  clerk 
in  the  municipal  office,  such  as  has  been  established  in  the  county  office. 
There  should  be  facilities  for  investigating  crime,  including  the  use  of 
modern  psychiatry  and  kindred  sciences.  Moreover,  there  should  be  a 
logical  division  of  work  among  the  assistants  in  both  offices  to  supplant 
the  present  hit  or  miss  practice,  which  is  so  particularly  revealed  in  the 
municipal  prosecutor's  office.  Cases  differ  in  grade  and  kind,  and 
specialization  should  be  put  into  effect  at  once  under  the  direction  of  the 
chief  municipal  prosecutor  and  the  county  prosecutor.  This  would 
mean  that  the  chief  municipal  prosecutor  should  become  primarily  an 
executive  official,  qualified  by  capacity  and  experience  to  be  the  head  of  a 

1  See  the  Supreme  Court  Decision  in  U.  S.  vs.  Moreland  (No.  629,  October  Term, 
1921),  decided  since  the  survey  was  conducted. 

[36] 


large  and  important  organization.  Also,  he  has  the  power  to  become  a 
leader  for  the  community  in  matters  relating  to  the  administration  of 
criminal  justice.  The  same  is  true  of  the  county  prosecutor,  whose 
chief  function  should  be,  not  the  prosecution  of  individual  cases,  but  the 
general  supervision  of  a  large  and  efficiently  organized  business  office. 

Business  Methods  in  Court 
The  survey  has  recommended,  in  some  detail,  changes  in  procedure 
and  method  for  judicial  administration.  Chief  among  these  are  the 
segregation  of  trials  or  calendars,  the  use  of  the  summons  instead  of 
arrests  in  a  large  number  of  cases,  stenographic  report  of  testimony  in 
preliminary  hearings  in  the  Municipal  Court,  and  a  toning  up  of  the  gen- 
eral decorum  surrounding  the  operation  of  both  courts. 

Abolish  the  Motion  in  Mitigation 
The  "motion  in  mitigation"  has  no  proper  place  in  the  administra- 
tion of  justice  and  should  be  abolished. 

The  Public  Defender  System 
The  report  on  criminal  courts  gives  in  some  detail  the  need  of  a  more 
modern  method  of  handling  those  cases  in  which  the  burden  of  the 
defense  as  well  as  the  prosecution  falls  upon  the  state.  Mr.  Smith  recom- 
mends that,  while  the  public  defender  system  which  has  been  demon- 
strated in  Los  Angeles,  and  which  is  now  extended  throughout  the  State 
of  California,  is  a  satisfactory,  modern,  and  efficient  method,  for  the 
present  Cleveland  can  trust  this  function  to  quasi-public  rather  than 
public  hands.  He  recommends  that  the  New  York  Voluntary  Defenders' 
Committee  be  used  as  a  model,  and  that  this  organization  should  take 
over  the  work  of  representing  poor  persons  in  criminal  cases  in  the  man- 
ner now  undertaken  by  the  legal  aid  society  in  civil  cases.  This  could  be 
controlled  by  a  special  committee  of  the  Bar  Association,  and  would  be 
able  to  do  the  work  of  assigned  counsel  with  much  greater  efficiency  and 
a  smaller  expenditure  of  money  than  is  now  required.  To  this  quasi- 
public  defender  office  the  Municipal  Court  judges  could  refer  cases  where 
defendants  need  counsel  for  a  fair  trial.  This  public  defender  system,  it  is 
hoped,  would  go  far  toward  eliminating  the  objectionable  shyster  lawyer 
from  his  most  profitable  field  of  employment. 

Further  Safeguards  for  the  Nolle 
The  survey  recommends  that  the  nolle,  which  has  become  such  a  large 
element  in  the  history  of  criminal  cases  in  Cleveland,  should  be  more 

[37  1 


adequately  safeguarded  from  abuse.  It  should  be  filed  like  any  other 
motion,  and  should  specify  in  writing  the  prosecutor's  reasons  for  declin- 
ing to  prosecute.  This  change  should  be  effected  by  rule  of  court,  and  it 
should  always  be  in  the  court's  further  discretion,  whether  the  complain- 
ing witness  should  be  notified  or  whether  there  should  be  a  general  notice 
by  publication. 

Adequate  Probation  as  an  Agent  of  the  Court 
The  practice  of  the  court,  suspending  sentences  and  operating  so 
largely  in  such  cases  without  information,  should  be  remedied  by  the 
establishment  of  adequate  probation  departments.  While  a  unified  court 
would  make  possible  the  ideal  condition  of  a  centralized  and  well-organ- 
ized probation  system  for  all  sorts  of  cases,  it  was  recommended  by  the 
survey  that  the  Common  Pleas  Court  immediately  establish  a  probation 
system  and  that  the  probation  system  in  the  Municipal  Court  be  unified 
and  coordinated  to  a  greater  degree  than  at  present. 

Improvement  of  Jury  System 
The  jury  system,  so  unsatisfactory  now,  could  be  greatly  improved  by 
a  simple  change  in  the  public's  attitude  toward  jury  service.  Unless  the 
intelligent  citizens  of  the  community  assume  a  different  attitude  toward 
their  obligations,  the  present  jury  cannot  be  very  greatly  improved.  In 
addition  there  should  be  more  safeguards  covering  the  service  of  sum- 
monses, which  would  put  an  end  to  the  present  wholesale  ignoring  of  the 
court's  call.  Excuse  from  the  jury  service  should  not  be  granted  except 
for  very  extraordinary  reasons,  such  as  a  death  in  the  immediate  family, 
or  cases  of  great  emergency,  or  danger  of  serious  or  irreparable  loss.  The 
present  system  of  maintaining  jury  commissioners  who  are  competent 
and  non-political  in  their  interests  is  highly  commended. 

Adequate  Housing  for  the  Criminal  Courts 
Many  of  the  evils  connected  with  the  administration  of  justice  can  be 
traced  back  to  the  unsatisfactory  housing  conditions  which  are  present  in 
both  county  and  municipal  courts.  Decorum  is  to  some  extent  dependent 
upon  the  physical  conditions  of  the  court-room,  and  decorum  is  one  of  the 
fundamental  shortcomings  of  both  courts.  Adequate  housing  for  the 
courts,  the  prosecutors,  and  other  agencies  of  the  courts  means  that 
Cuyahoga  County  must  build  an  adequate  building  for  criminal  justice. 
Great  improvement  in  the  operation  of  our  courts  cannot  come  until 
this  is  accomplished. 

[381 


PENAL  AND  CORRECTIONAL  TREATMENT 

CORRECTION,  PUNISHMENT,  AND  PUBLIC  OPINION 

THE  survey  points  out  that  Cleveland  has  institutions  typifying 
three  different  ideas  of  the  way  in  which  offenders  should  be 
treated : 

The  city  and  county  jails  belong  to  the  age  before  prison  reform. 
They  typify  the  medieval  view  that  offenders  are  the  "scum  of  the 
earth,"  and  that  to  purify  the  soul  is  to  mortify  the  flesh. 

The  Warrensville  correction  farm  was  conceived  in  a  fine  idealistic 
period.  It  was  the  fruition  of  a  splendid  dream,  but  the  revolution  which 
it  signified  exhausted  itself  in  marking  out  broad  boundary  lines.  It 
ignored  fundamental  details. 

The  Boys'  Farm  at  Hudson  was  conceived  and  built  in  the  same 
humanitarian  era  as  the  Warrensville  institution.  But  it  combined  the 
ideal  with  the  practical.  It  is  based  upon  sound  philosophy  of  treatment 
and  is  marked  by  'Hhat  triad  of  modern  progress,  common  sense,  scien- 
tific understanding,  and  effective  sympathy." 

The  City  and  County  Jails 

The  city  jail  is  housed  in  the  old  Champlain  Street  police  station,  and 
is  under  the  general  management  of  the  city  division  of  police.  It  is  used 
only  for  the  detention  of  prisoners  charged  with  violations  of  ordinances 
and  other  minor  offenses.  Except  for  a  few  unusual  cases,  the  period  of 
incarceration  is  from  twelve  hours  to  four  days.  The  present  condition 
of  this  jail  is  indescribably  wretched.  Its  administration  is  characterized 
not  only  by  lack  of  adequate  facilities,  but  also  by  the  absence  of  humane 
treatment  of  those  confined  there.  The  abandonment  of  the  city  jail 
will  be  necessary  during  the  year  1922,  on  account  of  an  extensive  public 
improvement  which  will  use  the  land  on  which  the  jail  is  now  located. 

The  county  jail  is  used  for  the  imprisonment  of  men  and  women 
charged  with  a  felony  who  are  awaiting  or  undergoing  trial.  It  is  under 
the  jurisdiction  of  the  sheriff  of  Cuyahoga  County.  It  houses  something 
over  100  prisoners.  No  discussion  is  needed  to  convince  the  people  of 
Cleveland  of  the  utterly  unsatisfactory  condition  of  this  jail.    It  partakes 

[39] 


of  most  of  the  sordidness  of  the  city  jail.  Its  administration  allows  too 
great  commingling  of  prisoners  and  lacks  safeguards  against  the  smug- 
gling in  of  contraband  articles.  Moreover,  the  guards  employed  are  of  a 
very  unsatisfactory  type. 

The  general  recommendations  of  the  survey  concerning  the  city  and 
county  jails  are  that,  pending  the  building  of  a  new  structure  which  is 
now  contemplated,  the  administration  of  both  be  improved  and  some 
attempt  be  made  to  put  them  in  a  clean  and  sanitary  condition. 

The  Department  of  Welfare  and  the  Warrensville  Workhouse 
The  Department  of  Welfare  of  the  city  of  Cleveland  is  administered 
under  a  director  appointed  by  the  mayor.  This  director  has  jurisdiction 
over  the  Warrensville  correction  farm,  the  Boys'  Farm  at  Hudson,  the 
Girls'  Farm,  and  the  probation  office.  The  survey  states  that  there  has 
never  been  sufficiently  well-defined  administrative  unity  within  the 
department.  It  states  that  it  is  a  paper  federation  of  bureaus  and 
departments  without  administrative  cohesion.  Recommendations  are 
made  which  are  intended  to  supply  the  administrative  unity  necessary 
under  the  Director  of  Welfare. 

The  Warrensville  workhouse  is  located  on  what  is  known  as  the 
Cooley  Farms  at  Warrensville,  12  miles  from  Cleveland.  The  workhouse 
building  is  a  comparatively  new  two-story  structure,  well  lighted  and 
ventilated,  and  built  in  the  form  of  a  square  inclosing  completely  a  large 
yard  used  by  prisoners.  The  institution  is  built  on  the  dormitory  plan, 
and  has  only  a  few  cells.  The  census  of  the  building  varies  between  400 
and  800,  with  480  as  a  fair  average.  Of  these,  about  50  are  women.  The 
inmates  represent  all  grades  of  offenders,  from  petty  short-term  delin- 
quents to  prisoners  charged  with  serious  crime  or  habitual  offenders 
charged  with  ordinary  offenses.  There  were  at  the  time  of  the  survey 
about  40  prisoners  charged  with  serious  crimes.  The  criticisms  of  the 
survey  apply  both  to  the  style  of  the  building  itself  and  to  the  adminis- 
tration at  the  time  when  the  survey  was  made.  The  survey  states  that  it 
is  very  unfortunate  that  the  building  should  have  been  built  on  the 
dormitory  plan,  which  permits  too  great  a  commingling  of  various  kinds 
of  prisoners  and  which  defeats  the  purpose  for  which  they  were  sent. 
The  criticisms  of  the  administration  are  much  more  serious.  The  survey 
found  a  general  lack  of  planning  at  the  head  of  the  institution.  There  was 
a  tendency  on  the  part  of  each  officer  to  treat  infractions  of  rules  much  as 
he  deemed  wise  without  definite  control  by  the  superintendent.  The 
employment  of  prisoners  was  marked  by  prevailing  idleness  and  lack  of 
well-planned  work.    There  was  a  lack  of  use  of  prisoners  in  road  work, 

[40] 


probably  on  account  of  an  excessive  number  of  escapes  during  the  past 
year. 

The  survey  recommends  improvement  in  the  administration  of  the 
institution  through  a  more  careful  study  of  the  aptitudes  and  the  mental 
and  physical  ability  of  the  inmates,  through  the  introduction  of  educa- 
tional facilities  and  more  adequate  reception,  classification,  and  credit- 
marking  methods. 

The  Cleveland  Boys'  Farm  at  Hudson  is  highly  commended  by  the 
survey.  This  institution  is  located  about  35  miles  from  Cleveland.  It  is 
a  city  farm  colony  institution,  with  eight  main  cottages  for  the  housing 
of  the  boys.  The  population  usually  averages  about  140  boys,  who  are 
selected  by  the  superintendent  from  among  the  boys  who  are  committed 
to  the  Detention  Home  by  the  Juvenile  Court.  The  survey  found  that 
the  superintendent  is  able,  through  wise  and  practical  management,  to 
utihze  in  a  very  marked  degree  the  facihties  that  are  at  hand,  that  he  has 
a  definite,  well-organized  plan  of  operation,  and  follows  humane,  though 
practical,  methods  in  his  administration. 

The  Girls'  Farm,  which  is  located  at  Warrens ville,  was,  at  the  time 
when  the  survey  was  made,  in  a  process  of  reorganization.  After  this 
process  was  complete,  the  survey  reexamined  the  institution  and  found 
that  many  of  the  practical  features  of  the  administration  of  the  Boys' 
Farm  have  become  characteristic  of  this  institution  for  girls.  It  is  now 
a  thoroughly  modern  institution  in  its  administration,  and  is  hampered 
only  by  a  lack  of  a  proper  building  and  proper  facilities  for  administra- 
tion. 

PAROLES 

From  the  Workhouse 

The  Director  of  Welfare,  with  his  parole  office,  and  the  superintendent 
at  the  workhouse  jointly  exercise  the  power  to  parole  from  the  Warrens- 
ville  workhouse.  The  survey  speaks  in  commendatory  terms  of  Director 
Blossom's  great  interest  in  the  work  of  parole,  and  the  extent  of  his  in- 
vestigation of  the  circumstances  of  individual  cases.  However,  a  more 
extensive  record  system,  both  in  the  parole  office  and  at  the  workhouse,  is 
recommended. 

From  State  Institutions 

State  institutions  were  not  included  in  the  survey,  except  in  a  some- 
what casual  manner,  in  cooperation  with  the  careful  and  extensive  work 
done  by  the  Bureau  of  Public  Efficiency  in  Columbus  in  investigating 
state  institutions  and  state  methods  of  correction.  The  so-called  Nor- 
wood Bill,  passed  in  1921,  is  strongly  condemned  by  the  survey.    This 

[41] 


bill  has  struck  a  very  serious  blow  at  the  indeterminate  sentence  law  by- 
authorizing  the  courts  to  fix  within  the  limits  fixed  by  law  a  minimum 
duration  of  sentences  in  felony  cases.  In  its  place  the  survey  recom- 
mended the  enactment  of  a  law  similar  to  a  New  York  law,  under  which 
the  court  sentences  the  prisoner  to  the  penitentiary  for  the  statutory 
maximum,  but  with  no  minimum.  After  the  prisoner  is  received  at  the 
penitentiary  a  study  is  made  of  the  information  which  the  court  had  at 
the  time  of  sentence,  and  of  all  information  the  parole  board  and  the 
penitentiary  officials  are  able  to  secure.  This  is  embodied  in  a  report  and 
forwarded  to  the  judge  presiding  in  the  court  where  sentence  was  im- 
posed, with  a  recommendation  of  a  specific  minimum  sentence.  The 
court  then  has  the  opportunity  to  determine,  upon  the  basis  of  more 
adequate  information  than  he  could  possibly  have  at  the  trial,  the  mini- 
mwoa  sentence  which  the  prisoner  should  receive. 


PROBATION  IN  THE  MUNICIPAL  COURT 

Cleveland  was  one  of  the  first  cities  to  establish  a  probation  depart- 
ment in  its  Municipal  Court.  The  survey,  however,  finds  that  little  or  no 
progress  has  been  made  in  this  line  of  work  since  it  was  started  many 
years  ago. 

The  probation  system  of  Cleveland's  Municipal  Court  has  two 
branches — one  a  probation  office  for  adult  men  and  the  other  for  women. 
Technically,  both  offices  are  under  the  probation  officer  for  men.  But  in 
fact  they  are  now  two  entirely  separate  offices  without  unified  plans  and 
with  inadequate  facilities  for  carrying  on  their  work.  The  chief  probation 
oflBcer  has  two  assistants,  and  the  probation  officer  for  women  has  two. 
These  six  oflicers  are  attempting  to  do  the  work  which  should  be  done  by 
20  officers.  They  have  no  clerks  or  typists.  The  filing  system  is  not  ade- 
quate for  the  work,  and  the  entire  surroimdings  are  such  that  good  work 
is  almost  impossible.  The  men's  probation  office  is  conducted  with  an 
utter  lack  of  efficiency.  There  is  no  administrative  abiUty  back  of  the 
work.  The  chief  probation  officer  is  without  a  constructive  plan,  but 
makes  an  effort  day  by  day  to  meet  the  problems  of  the  day.  The  pro- 
bation officer  for  women  and  her  two  assistants  have  a  much  better  plan 
of  operation.  There  is  a  definite  plan  of  work,  a  consistent  and  fairly 
well-kept  record,  a  fair  system  of  reports,  and  a  follow-up  system,  which 
is  as  well  thought  out  and  administered  as  facilities  will  permit. 

The  Women's  Protective  Association,  a  private  organization  sup- 
ported by  the  Community  Fund,  has  an  office  in  the  Municipal  Court. 
Its  work  is  unofficial.    It  gives  assistance  to  both  divisions  of  the  proba- 

[42] 


tion  department,  and  is  willing  to  furnish  field  investigators  and  to  assist 
in  clerical  work.  However,  it  cannot  be  effective  until  a  harmonious 
working  basis  is  established  between  itself  and  the  official  probation  de- 
partment.   Such  a  relationship  does  not  now  exist. 

PARDONS 

The  Ohio  Institute  for  Public  Efficiency  published,  on  December  1, 
1921,  a  report  of  a  study  of  Ohio's  pardon  system,  which  is  published  as 
an  appendix  to  the  survey.    The  following  is  a  summary  of  this  report : 

Ohio's  Pardoning  System 

In  the  past  twenty-two  years  837  pardons  and  commutations  have 
been  granted  to  prisoners  in  the  Ohio  penitentiary  by  the  respective  gov- 
ernors, or  an  average  of  38  per  year.  The  number  varies  greatly  from 
year  to  year,  as  shown  in  three  successive  years,  when  21,  41,  and  75  were 
granted.  Nearly  two-thirds  of  those  committed  for  first  and  second  de- 
gree murder  during  the  ten-year  period  1900  to  1909  inclusive,  totaling 
211,  were  released  by  pardon  or  commutation  before  November  15,  1921. 
On  this  date  only  nine  of  the  211  remained. 

In  the  six-year  period,  ending  June  30,  1921,  384  individuals  received 
393  pardons  and  commutations  after  serving  an  average  term  of  three 
years,  four  months,  and  twenty-six  days  each.  The  average  time  served 
by  the  121  "life  termers"  thus  released  was  six  years,  eight  months,  and 
twenty-five  days  each.  Of  the  93  first-degree  murderers  received  from 
1900  to  1909  inclusive,  23  served  less  than  ten  years,  and  of  the  1 18  sec- 
ond-degree murderers  similarly  received,  55  served  less  than  ten  years. 

The  principal  reason  officially  assigned  by  governors  for  granting 
pardons  was  "recommended  by  the  boards  of  pardon  and  clemency." 
This,  however,  is  not  a  sufficiently  definite  statement.  In  some  cases  the 
real  reason  appeared  to  be  the  view  that  the  minimum  sentence  was  too 
long.  Forty-one  were  released  during  the  six-year  period  ending  June  30, 
1921,  in  honor  of  certain  holidays. 

Three  were  released  because  of  "lack  of  mental  responsibility."  In 
other  words,  a  person  convicted  of  "assault  to  kill"  is  turned  loose  on  a 
community  because  of  a  mental  condition  which  increases  the  probabil- 
ity of  another  offense. 

It  is  recommended  by  the  survey  that  pardons  be  granted  only  in 
cases  where  adequate  evidence  indicates  that  an  injustice  has  been  done, 
and  in  order  at  least  partially  to  remedy  that  injustice;  or  in  rare  cases 

[43] 


to  reward  extraordinary  deeds  of  heroism  or  fidelity.  In  all  other  cases 
where  executive  action  is  deemed  necessary  it  should  be  in  the  form  of  a 
commutation  which  should  be  granted  only  where  adequate  evidence 
indicates  that  the  minimum  sentence  was  unduly  long  and  that  the 
interests  of  society,  as  well  as  the  individual,  will  be  promoted.  The 
sentimental  practice  of  granting  holiday  commutations  with  little  or  no 
apparent  other  reason  should  be  discontinued. 

PROPOSED  NEW  CRIMINAL  COURTS  BUILDING 

The  very  great  importance  of  the  building  of  a  new  structure  to 
house  the  criminal  courts  and  the  various  jails  is  indicated  by  the  inade- 
quacy of  the  present  quarters.  In  all  departments  studied  by  the  survey 
there  is  an  appalling  lack  of  housing  facilities  and  a  tendency  on 
the  part  of  public  officials  to  excuse  their  shortcomings  because  of  this 
inadequacy.  Therefore,  the  improvement  of  criminal  justice  in  Cleve- 
land demands  that  something  be  done  immediately  to  provide  proper 
housing  of  the  institutions  for  administering  criminal  justice. 

Six  times  the  people  of  this  county  voted  upon  the  question  of  issuing 
bonds  for  a  new  criminal  courts  building.  In  five  of  the  six  instances 
the  proposal  was  disapproved.  At  the  present  time  the  whole  matter 
is  seemingly  deadlocked  by  a  determination  on  the  part  of  the  voters 
not  to  allow  the  construction  of  such  a  building  under  present  plans. 

The  survey  made  some  study  of  the  plans  and  of  the  various  pro- 
posals submitted  by  public  and  semi-public  bodies,  and  recommended 
that  police  headquarters,  criminal  courts,  prosecutors'  offices,  and 
county  and  city  jail  should  be  housed  in  a  single  building  of  the  office 
building  type.  The  Juvenile  Court  should  be  eliminated  from  the  plans 
for  this  building  and  should  be  provided  for  either  in  a  new  building  to  be 
erected  adjacent  to  the  Detention  Home  or  in  a  public  school  building. 

THE  JUVENILE  COURT 

The  survey's  consideration  of  the  Juvenile  Court  was  limited  chiefly 
to  the  scope  and  methods  of  the  work  of  the  probation  department  and 
to  the  important  question  of  the  application  of  psychiatry  to  the  work 
of  the  court. 

It  found  that  the  administrative  shortcomings  of  the  probation  de- 
partment were  very  great.  The  chief  probation  officer's  time  was  too 
largely  given  to  individual  cases.  His  record  system  was  inadequate, 
too  much  depending  upon  his  ability  to  remember  details.  The  mass 
of  work  which  he  attempted  to  do  himself  was  so  great  as  to  prevent 

[441 


him  from  adequately  seeing  his  problem  in  its  larger  aspects,  while  too 
great  discretion  was  permitted  to  rest  with  his  office  in  matters  involving 
very  vital  interests  of  persons  coming  to  the  court. 

When  the  survey  was  made  the  Juvenile  Court  was  entirely  de- 
pendent upon  the  schools  for  mental  examinations  of  cases  of  juvenile 
delinquency.  The  psychologist  for  the  Boys'  School  conducted  ex- 
aminations of  children  committed  to  the  Detention  Home,  while  certain 
cases  selected  by  the  judge  are  examined  by  the  head  of  the  school 
psychological  clinic. 

Recommendations 

The  most  important  recommendations  of  the  survey  relating  to  the 
Juvenile  Court  are: 

1.  That  an  adequate  probation  department  be  organized  under  the 
direction  of  a  chief  probation  officer  having  rank  and  salary  equivalent 
with  that  of  an  assistant  superintendent  of  schools.  This  officer  should 
be  a  competent  executive,  able  to  get  the  maximum  cooperation  of 
other  related  social  agencies,  and  should  give  his  time  wholly  to  the 
overhead  executive  work  of  his  office. 

2.  Mental  and  physical  examinations  of  children  brought  into  the 
coiirt  should  be  given  not  merely  in  those  cases  in  which  the  judge  or 
probation  officer,  after  "sizing  them  up,"  require  it.  "There  should  be 
a  mental  and  physical  examination  of  every  child  brought  into  the 
Juvenile  Court  or  its  probation  department,  and  an  extensive  inter- 
change of  records  of  examinations  among  all  the  agencies  interested, 
before  the  case  comes  up  in  court  for  formal  action."  The  survey  sug- 
gests reasonable  ways  in  which  such  examinations  may  be  provided. 


[45] 


MEDICAL  SCIENCE  AND  CRIME 

SCIENCE  AND  CRIME 

THE  purely  vindictive  theory  of  crime  treatment  dies  hard.     This 
theory  views  punishment  as  a  means  of  frightening  the  criminal 
from  repeating  his  offense  and  by  the  severity  of  the  "lesson"  to 
deter  others  from  similar  wrongdoing.     Its  weakness  is  in  the  fact  that 
it  neither  cures  nor  deters. 

"  There  was  a  time  when  medicine  was  practised  on  much  the  same 
basis.  All  the  ailments  of  the  human  body  were  believed  to  be  machi- 
nations of  evil  spirits.     The  reactions  of  chemical  substances  in  the 


THE  only  way  to  stop  us  is  to  find  out  who  and  what  we 
are  and  what  we're  good  for.     Then  you've  got  to  make 
punishment  severe  enough  or  opportunity  good  enough 
for  us.     You  don't  do  either  now. 

— Statement,  of  Expert  Criminal 


retort  were  thought  to  be  presided  over  by  good  and  evil  spirits.  The 
scientific  attitude  which  has  removed  these  personal  elements  in  the  fields 
of  pure  science  and  of  medicine  is  capable  of  doing  the  same  in  crim- 
inology. 

"When  the  public  becomes  convinced  that  there  are  in  the  com- 
munity specially  trained  persons  who  understand  delinquency  and  who 
are  able  to  evaluate  the  .various  factors  in  behavior  difficulties,  the 
result  will  be  like  that  already  witnessed  in  the  field  of  public  health. 
Few  persons  today  have  to  be  coerced  to  be  protected  against  disease  or 
to  be  treated  when  they  are  ill.  When  the  public  has  learned  to  regard 
behavior  difficulties,  delinquency,  and  crime  as  manifestations  of  mental 
difficulties  requiring  treatment,  just  as  physical  ailments  do,  and  pro- 
vides institutions  and  officers  to  deal  with  these  troubles  as  mental 
disease,  rather  than  from  the  point  of  view  of  punitive  justice,  we  shall 
be  able  to  record  advances  as  notable  as  those  of  the  public  health 

[461 


movement.  And  just  as  public  health  machinery  has  made  large  cities 
and  small  country  villages  healthy  places  in  which  to  live,  so  this  new 
public  mental  health  movement  will  make  our  communities  safe  and 
sane  places  in  which  to  live."     (P.  440.) 

THE  ADULT  CRIMINAL 

More  has  been  done  in  Cleveland  in  utilizing  medical  science  in 
deaUng  with  the  juvenile  offender  than  with  the  adult  because  of  the 
slowness  of  public  opinion  to  admit  the  lack  of  personal  responsibility 
on  the  part  of  the  adult  offender.  The  survey  found  that  *' except  for 
the  occasional  perfectly  obvious  case,  no  use  is  made  of  medical  and 
more  especially  mental  treatment  in  dealing  with  adult  offenders." 

And  yet  "experience  in  some  of  our  reformatories  and  penitentiaries 
has  conclusively  shown  that  the  study  of  mentality  jdelds  information 
which  no  modern  institution  can  neglect.  One  need  merely  refer  to  the 
well-known  work  at  Sing  Sing,  Concord,  Eknira,  and  Bedford  Hills,  not 
to  mention  the  institutions  of  New  Jersey,  Michigan,  and  Illinois,  and 
especially  the  United  States  Disciplinary  Barracks  at  Fort  Leaven- 
worth, Kansas.  And  what  has  come  more  and  more  to  be  considered  in- 
dispensable in  these  institutions  has  proved  itseh  of  similar  value  to  the 
courts.  Mental  examinations  and  personahty  studies  are  now  insisted 
upon  as  a  sine  qua  non  in  the  work  of  practically  all  the  juvenile  courts 
of  the  country.  The  municipal  courts  of  Chicago,  Boston,  Detroit,  and 
Baltimore  have  psychopathic  clinics  or  laboratories  to  which  are  referred 
all  doubtful  cases."     (P.  447.) 

Recommendations  for  Study  of  Adult  Behavior  Problems 
L  A  chief  psychiatrist  empowered  to  appoint  three  deputy  psy- 
chiatrists, one  psychologist,  and  one  assistant  psychologist,  should  be 
appointed  by  the  judge  of  the  Probate  Court. 

2.  This  staff  should  examine  and  pass  upon  all  cases  coming  before 
the  Probate  Court,  the  Municipal  Court,  and  the  Court  of  Common 
Pleas  in  which  the  question  of  insanity,  epilepsy,  or  mental  deficiency  is 
raised.  Also,  in  so  far  as  possible,  this  staff  should  examine  all  persons 
coming  before  the  Municipal  Court.  The  chief  psychiatrist  should 
present  to  the  court,  in  writing,  a  statement  of  the  findings  and  opinions 
of  his  staff  in  each  case  examined,  although  in  cases  of  doubt  or  dispute 
the  court  should  be  empowered  to  appoint  a  special  psychiatrist  to 
examine  the  case. 

3.  The  services  of  this  staff  should  be  available  for  prosecutors,  both 
city  and  county. 

[47] 


4.  There  should  be  a  mental  health  officer  of  the  police  department, 
who  should  devote  his  full  time  to  the  mental  problems  of  the  police 
force  and  of  police  work.  He  could  be  used  in  training  policemen,  make 
mental  and  personality  examinations  of  candidates  for  appointments, 
and  assist  in  determining  promotions,  especially  to  the  detective  force. 
He  could  also  be  present  at  special  examinations  of  suspects  and  assist 
in  securing  confessions  from  them. 

JITV^ENILE  BEHAVIOR  PROBLEMS 

"To  those  who  look  back  from  a  secure  position  in  society  upon  an 
adventurous  and  unlucky  childhood  or  youth,  it  must  appear  that 
every  individual  has  been,  at  one  time  or  another,  more  or  less  delin- 
quent. 'There,  but  for  the  grace  of  God,  goes  John  Bunyan,'  expresses 
their  unconscious  feeling  when  they  consider  criminality."  While  this 
wide-spread  feeling  may  permit  the  public  at  large  to  look  with  some 
sympathy  upon  juvenile  delinquency  and  to  permit  a  more  scientific 
method  of  dealing  with  juvenile  delinquents,  it  does  not  adequately 
explain  the  problem  of  delinquency  to  one  who  would  differentiate 
between  the  significance  of  a  single  act  and  a  series  of  reactions  shown 
in  the  career  of  a  dehnquent  individual.  In  other  words,  acts  of  de- 
linquency, which  appear  to  the  ordinary  person  identical,  may  actually 
have  been  produced  by  entirely  different  kinds  of  individual  char- 
acteristics. One  may  be  the  mere  outbreak  of  the  mischievous  spirit 
of  a  normal  person,  while  the  other  may  be  a  manifestation  of  a  hidden 
but  potential  criminal  tendency.  The  only  way  to  discriminate  and 
thus  to  treat  properly  the  various  behavior  problems  of  juvenile  de- 
linquency is  through  the  assistance  of  persons  skilled  in  psychiatry. 

Such  skiU  in  scientific  treatment  of  criminahty  is  in  Cleveland  most 
inadequate  and  scattered  even  for  juvenile  delinquents,  and  is  practically 
non-existent  in  the  case  of  adults. 

A  Children's  Institute 
An  outstanding  feature  of  Dr.  Adler's  report  is  his  recommendation 
for  the  creation  of  a  children's  institute,  to  be  under  the  jurisdiction  of 
the  board  of  education,  and  to  furnish  service  to  all  the  organizations 
which  need  the  expert  service  in  mental  health.  Under  this  institute 
there  should  be  mental  health  stations,  which  should  resemble  dis- 
pensaries rather  than  hospitals.  Every  effort  should  be  made  to  get 
visiting  nurses,  policemen,  and  such  institutions  as  the  Juvenile  Court, 
the  Humane  Society,  and  the  public  school  teachers  to  avail  themselves 
of  the  services  of  these  stations. 

[48] 


Dr.  Adler  points  out  that,  in  Cleveland,  the  best  plan  would  be  to 
estabHsh  a  psychopathic  hospital  as  a  part  of  the  city  hospital,  and  ulti- 
mately a  psychiatric  institute  in  connection  with  Lakeside  or  Fairview 
Hospital,  in  addition  to  the  proposed  "children's  institute."  Only  in 
this  way  can  the  large  number  of  behavior  cases  which  require  observa- 
tion in  a  city  as  large  as  Cleveland  be  adequately  cared  for. 

THE  OBSOLETE  OFFICE  OF  CORONER 

When  the  survey  started,  the  Cleveland  Academy  of  Medicine 
appealed  to  the  Foundation  asking  that  attention  be  directed  to  the 
distressing  need  either  of  drastic  legislation  reforming  the  coroner's 
ojffice  or  its  complete  abohtion.  Consequently  a  study  of  this  office  was 
added  to  Dr.  Adler's  report. 

Shakespeare,  in  writing  Hamlet,  sought  to  bring  some  comedy  into 
one  of  the  world's  most  serious  plays.  The  high  spot  in  this  bit  of 
humor — when  one  may  imagine  the  Elizabethan  audience  indulged  in 
its  loudest  burst  of  laughter — is  a  reference  to  the  "crowner"  or  coroner 
— a  joke  300  years  ago. 


CROWNER'S  QUEST  LAW 

First  Clown:  "Here  lies  the  water;  good:  if  the  man  go  to 
this  water  and  drown  himself,  it  is,  will  he,  nill  he,  he  goes; 
mark  you  that;  but  if  the  water  come  to  him  and  drown  him, 
he  drowns  not  himself;  argal,  he  that  is  not  guilty  of  his  own 
death  shortens  not  his  own  life." 

Second  Clown:  "  But  is  this  the  law?  " 

First  Clown:  "Ay,  marry,  is't:  crowner's  quest  [coroner's  in- 
quest] law." 

— Hamlet 


Unlike  most  humor,  the  coroner's  office  becomes  funnier  with  age. 
The  arresting  bit  of  seriousness  is  the  wonder  at  its  survival  in  the  midst 
of  the  growth  of  civilization  in  America. 

The  office  of  coroner  is  governed  entirely  by  statute.  It  does  not 
appear  in  the  state  constitution — a  fortunate  circumstance  for  those  who 
seek  to  abolish  it.  The  coroner's  chief  duty  is  to  determine  in  cases  of 
sudden  or  unexplained  death  the  causes  of  death  and  whether  it  resulted 

[49] 


from  unlawful  means.  In  the  latter  case  he  must  attempt  to  fix  respon- 
sibility for  the  crime  and  name  the  perpetrator.  The  coroner  is  elected 
at  the  November  election  in  even  years.  The  coroner's  staff  is  appointed 
by  the  county  commissioners.  Thus  the  coroner  has  nominal  jurisdiction 
over  his  subordinates  but  cannot  appoint  or  remove  them. 

The  duties  of  the  coroner  are  as  follows: 

The  coroner  holds  "inquests"  which  consist  of  inquiries  concerning 
the  "deaths  supposed  to  have  been  caused  by  violence."  This  includes 
summoning  witnesses,  taking  testimony,  and  the  making  of  a  report. 
The  coroner  is  largely  his  own  guide  as  to  the  deaths  over  which  he  holds 
inquests.  He  selects  physicians  to  hold  autopsies  in  certain  cases  where 
he  deems  it  necessary,  and  is  nominally  in  charge  of  the  county  morgue, 
although  morgue  keepers  are  appointed  by  the  county  commissioners. 

The  main  duty  of  the  coroner  being  to  determine  the  exact  cause  of 
deaths  brought  about  "by  violence,"  it  is  interesting  to  note  what  sort 
of  determinations  have  been  made  in  individual  cases.  The  following, 
taken  from  the  list  of  causes  of  death  recorded  by  the  coroner  in  1919,  are 
important  indications  of  the  sort  of  assistance  which  the  coroner  gives  in 
law  enforcement.  They  stand  impressively  not  only  as  indications  that 
the  exact  causes  of  death  are  not  determined  in  Cuyahoga  County,  but 
as  evidence  that  the  humorous  character  of  "crowners  quest  law"  did 
not  die  with  Shakespeare: 


No.  22942 
No.  23178 
No.  23203 
No.  23241 
No.  22964 
No.  22990 
No.  23035 
No.  23187 
No.  23253 
No.  23484 
No.  23512 
No.  23551 
No.  23605 
No.  23670 
No.  23686 


"Could  be  suicide  or  murder." 

"Aunt  said  she  complained  of  pneumonia,  looked  like  narcotism." 

"Believe  strychnia  used — viewed  as  suicide." 

"Looks  suspicious  of  strychnine  poisoning." 

"Found  dead." 

"Head  severed  from  body." 

"Could  be  assault  or  diabetes." 

"Diabetes,  tuberculosis  or  nervous  indigestion." 

"Consider  it  tuberculosis." 

"Found  crushed." 

"Could  be  diabetes  or  poison." 

"Died  suddenly  after  taking  medicine." 

"Died  suddenly." 

"Loss  of  blood." 

"Shock." 


The  survey  recommends  that  the  office  of  coroner  be  abolished  and  a 
law  similar  to  the  New  York  or  Massachusetts  law  creating  a  medical 
examiner  be  enacted. 

[501 


THE  BAR,  THE  PRESS,  AND  THE  PUBLIC 

THE  ATMOSPHERE  IN  WHICH  JUSTICE 
IS  ADMINISTERED 

* '  T^UBLIC  opinion"  is  inchoate,  it  is  irresponsible,  it  cannot  fight 
r"^  back  when  it  is  assailed,  it  may  be  to  blame  and  it  may  not, — no 
one  knows  and  no  one  can  know, — therefore  it  is  blamed  for  most 
of  our  shortcomings.  But  it  does  have  certain  characteristic  and  some- 
what specific  tendencies.  It  does  demand  severity  at  times  and  permits 
laxness  at  other  times.  Consequently  it  is  a  factor  which  can  be  made 
the  subject  of  study  and  investigation. 

The  survey  could  not  and  did  not  go  into  the  vast  ramifications  im- 
plied in  a  study  of  why  the  public  permits  certain  things  to  be  done.  It 
did,  however,  select  two  of  the  outstanding  forces  which  in  any  com- 
munity influence,  on  the  one  hand,  the  administration  of  justice,  and,  on 
the  other  hand,  the  attitude  of  the  public  itself.  These  two  influences 
bear  a  great  share  of  the  responsibility  for  the  condition  of  criminal 
justice  as  it  is  now  administered.    They  are  the  bar  and  the  press. 

THE  RESPONSIBILITY  OF  THE  BAR 

In  the  last  analysis,  the  bar  cannot  escape  in  a  large  measure  the 
responsibility  for  the  quality  of  the  administration  of  justice.  Judges 
and  prosecutors  are  recruited  from  the  legal  profession;  the  prevailing 
standards  of  the  bar  inevitably  influence  the  quality  of  judicial  service, 
and  the  public  must  largely  look  to  the  lawyers,  with  their  intimate 
knowledge  of  and  association  with  the  courts,  for  informed  leadership. 
The  bar  constitutes  a  specially  privileged  group  which  can  influence  and 
inform  pubhc  opinion.  The  survey  gave  especial  attention  to  this  prob- 
lem, the  reports  on  the  Criminal  Courts  and  Prosecution  refer  very 
definitely  to  the  responsibility  of  the  bar,  and  Dean  Pound  in  his  summary 
volume  places  great  emphasis  upon  it. 

The  outstanding  observations  of  the  survey  concerning  the  Cleveland 
bar  as  a  whole  are  three  in  number: 

1.  It  is  not  well  educated. 

[51] 


2.  Its  best  members  ignore  the  administration  of  criminal  justice. 

3.  It  is  inadequately  organized  and  disciplined. 

The  Education  of  the  Cleveland  Bar 
Recognizing  the  influence  of  the  kind  of  legal  education  provided  in 
Cleveland  upon  the  quality  of  the  administration  of  justice  the  survey 
employed  Albert  M.  Kales  to  make  a  study  of  legal  education  in  Cleve- 
land. 

The  standard  of  legal  education  is  set  by  the  laws  of  Ohio  and  the 
regulations  provided  by  the  State  Board  of  Examiners.    At  present  those 


LEADERSHIP  OF  THE  BAR 

*  *'^  T'OU  are  lawyers  .  .  .  your  duty  is  a  much  larger 
\^  thing  than  the  mere  advice  of  private  clients.  In  every 
deliberate  struggle  of  law  you  ought  to  be  guides,  not 
too  critical  and  unwilling,  not  too  tenacious  of  the  familiar  tech- 
nicalities in  which  you  have  been  schooled,  not  too  much  in  love 
with  precedents  and  the  easy  maxims  which  have  saved  you  the 
trouble  of  thinking,  but  ready  to  give  disinterested  and  expert 
advice  to  those  who  purpose  progress  and  the  readjustment  of 
justice. 

"  You  are  servants  of  the  public,  of  the  state  itself.  It  is  your 
duty  to  advise  those  who  make  its  laws ;  to  advise  them  in  the 
general  interest  with  a  view  to  the  amelioration  of  every  undesir- 
able condition  that  the  law  can  reach,  in  lightening  of  every 
burden  law  can  lift  and  the  righting  of  every  wrong  the  law  can 
rectify." 

— WooDROW  Wilson  to  American  Bar  Association,  1910 


taking  the  State  bar  examination  must  have  studied  law  for  three  years, 
and  must  have  a  general  education  equivalent  to  a  four-year  high-school 
course.  The  applicant  who  studies  in  Cleveland  may  do  so  under  the 
instruction  of  any  attorney  in  Cleveland  or  in  one  of  three  law  schools — 
the  Law  School  of  Western  Reserve  University,  the  Cleveland  Law 
School,  and  the  John  Marshall  Law  School. 

During  the  past  four  years  58  persons  from  Cleveland,  who  have  been 
admitted  to  the  bar,  presented  attorneys'  certificates  for  some  period  of 
study.    Sixty-six  Cleveland  attorneys  have  given  such  certificates.    This 

[52  1 


method  of  study,  at  one  time  the  orthodox  way  to  prepare  for  the  bar, 
has  now  become  the  least  satisfactory.  The  American  Bar  Association 
has  condemned  this  method  of  preparation,  a  view  the  survey  shares. 

Some  idea  of  the  importance  of  the  three  law  schools  can  be  gained 
from  the  estimate  of  the  survey  that  of  the  1400  practising  attorneys  in 
Cleveland,  280  are  graduates  of  the  Western  Reserve  University  Law 
School,  300  of  the  Cleveland  Law  School,  and  20  of  the  John  Marshall 
Law  School.  A  still  more  significant  indication  of  the  importance  of  these 
law  schools  in  the  administration  of  criminal  justice  is  found  in  the  fact 
that  "the  members  of  the  bar  of  Cleveland  who  have  acted  as  prosecutors 
in  the  past  twenty  years  in  Cleveland,  27  are  graduates  of  the  Cleveland 
Law  School,  1 1  of  the  Law  School  of  Western  Reserve  University,  none 
of  the  John  Marshall  Law  School,  and  11  of  other  law  schools,  including 
one  from  Harvard,  five  from  Michigan,  one  from  Cornell,  and  two  from 
Ohio  State." 

Of  the  relative  amount  of  instruction  provided  by  the  night  law 
schools,  which  have  come  to  furnish  such  a  large  proportion  of  the  bar  of 
Cleveland,  Dean  Pound  states,  "It  is  not  controversial  that  the  stan- 
dard of  the  night  law  schools  in  Cleveland  is,  in  important  respects,  below 
the  standard  of  such  schools  in  other  cities  of  the  size  of  Cleveland,  and 
very  much  below  what  it  ought  to  be.  The  night  schools  in  Cleveland 
require  of  the  student  648  class-room  hours  as  against  1080,  the  minimum 
in  the  day  schools.  Note  what  this  means  in  the  one  matter  of  criminal 
law  and  procedure.  One  of  the  Cleveland  night  schools  gives  26  class- 
room hours  to  this  subject;  the  other  gives  30.  On  the  other  hand,  not 
to  go  outside  of  Ohio,  the  three  admittedly  first-class  schools,  Cincinnati, 
Ohio  State,  and  Western  Reserve,  give  to  that  subject  72,  72,  and  90 
hours  respectively.  Yet  it  is  more  than  likely  that  the  student  with  one- 
third  of  the  legal  training  will  be  the  one  who  will  practise  in  the  criminal 
courts.  With  one  exception  the  night  schools  in  Cleveland  teach  only  the 
subjects  required  for  the  bar  examination.  They  have  inadequate  library 
facilities,  and  their  students  have  no  time  to  use  libraries  if  such  facilities 
were  at  hand.  But  this  means  that  they  have  no  time  to  read  the  books 
that  every  lawyer  ought  to  read  if  he  is  to  form  an  adequate  conception 
of  his  duties  and  of  the  system  of  administering  justice  of  which  he  is  to 
be  a  part." 

The  survey  does  not  take  those  in  charge  of  the  night  law  schools  to 
task  for  these  inadequate  standards.  It  points  out  that  with  the  stan- 
dard set  by  the  state  the  elimination  of  the  night  law  schools  would  throw 
most  of  their  students  into  the  hands  of  lawyers  who  would  "instruct" 
them  in  a  still  more  unsatisfactory  manner.    Moreover,  that  it  is  not 

[53  1 


"  practicable  to  call  upon  the  night  law  schools  run  for  profit  to  adopt  a 
higher  standard.  It  is  an  economic  fact  that,  so  long  as  law  schools  run 
for  private  profit  may  freely  enter  the  field  of  legal  education,  no  such 
school  can  raise  its  standards  above  the  minimum  which  will  enable 
applicants  for  admission  to  the  bar  to  pass  the  bar  examinations.  If  one 
attempts  to  do  so  by  requiring  a  longer  period  of  study  or  more  hours  of 
study  a  week,  it  will  at  once  lose  patronage  to  a  school  which  keeps  to  the 
minimum  standard,  or  it  will  call  into  existence  a  school  which  will  secure 
students  on  the  basis  of  the  minimum  standard.  This  has  already  been 
demonstrated  in  Cleveland." 

The  heart  of  the  matter  is  the  lack  of  adequate  standards  imposed  by 
the  state  authorities.  The  survey  shows  that  "85  per  cent,  of  those  who 
apply  for  examination  pass  the  Ohio  bar  examination,  whereas  in  New 
York  42  per  cent,  pass  (on  an  average  for  the  past  ten  years)  and  in 
Illinois  62  per  cent,  (on  an  average  for  the  past  nine  years).  The  only 
practicable  remedy  is  to  raise  the  standards  for  admission  and  thus  enable 
the  night  schools  to  exact  a  reasonable  education." 

In  the  matter  of  the  standards  for  admission  to  the  bar  in  Ohio  the 
survey  recommends  that  rigid  restrictions  and  supervision  be  imposed 
upon  private  instruction  by  practising  attorneys;  that  the  required  four- 
year  high-school  course  should  be  completed  before  the  beginning  of  the 
three-year  legal  course;  that  the  character  of  legal  study  be  prescribed 
by  state  authority  in  more  detail ;  the  exercise  of  visitorial  powers  by  the 
bar  examiners  or  committees  appointed  by  them;  and  a  rigid  inquiry 
into  the  moral  fitness  of  applicants,  by  a  committee  of  the  bar. 

The  Avoidance  of  Criminal  Practice 
The  replies  to  a  questionnaire  sent  to  all  the  members  of  the  Cleve- 
land bar  developed  the  startling  fact  that,  except  in  extraordinary  cases 
and  with  a  very  few  notable  exceptions,  the  better  members  of  the  Cleve- 
land bar  ignore  criminal  practice  entirely.  Of  the  replies  received,  40  per 
cent,  accepted  no  criminal  cases  whatsoever,  while  only  3  per  cent,  took 
criminal  practice  regularly.  The  reasons  given  for  not  accepting  criminal 
practice  were  in  most  cases  financial,  while  others  expressed  ethical  or 
esthetic  objections. 

Mr.  Bettman's  conclusion  as  to  this  avoidance  of  criminal  practice  is 
as  follows: 

"As  a  result,  with  some  notable  and  praiseworthy  exceptions,  the  practice  in 
those  courts  is  left  to  the  lawyers  of  lesser  sensitiveness  regarding  professional 
practices.    The  criminal  branch  of  the  administration  of  justice,  dealing  as  it 

f54] 


does  with  the  protection  of  the  community  against  crime,  the  promotion  of 
peace,  safety,  and  morals  of  the  inhabitants,  the  lives  and  liberties  of  men,  and, 
therefore,  from  any  intelligent  point  of  view,  the  more  important  branch  of  the 
administration  of  the  law,  has  become  a  sort  of  outlaw  field  which  many  a  lawj'er 
avoids  as  he  avoids  the  slums  of  the  city. 

"Criminal  practice  must  be  made  a  field  in  which  the  lawyer  and  the  gentle- 
man (in  the  American  sense  of  that  word)  can  feel  at  home.  And  one  of  the 
courses  which  might  promote  this  is  for  the  lawyers,  who  are  both  lawyers  and 
gentlemen,  to  return  to  the  first  principles  regarding  the  position  of  the  lawyer  as 
an  officer  of  the  law  and  accept  criminal  practice.  If  the  man  accused  of  crime 
knows  that  he  can  obtain  first-class  talent  at  a  reasonable  compensation,  he  will 
have  no  excuse  for  taking  his  case  to  the  shyster  or  police  court  hanger-on,  and 
both  the  courts  and  prosecutors  will  then  have  some  justification  for  feeling  par- 
ticularly suspicious  and  cautious  in  cases  in  which  the  defendants  retain  un- 
scrupulous or  disreputable  lawyers."     (Pages  220-221.) 

The  Organization  of  the  Bar 

Cleveland  has  a  bar  association  including  800  of  the  1400  members 
of  the  city  bar.  For  about  three  years  it  has  maintained  an  office  and  a 
paid  secretary.  During  this  time  there  has  been  a  marked  increase  in  its 
activity  as  an  organization.  It  has  actively  pushed  important  legisla- 
tion and  has  investigated  charges  against  members  of  the  bar.  It  be- 
came very  active  in  the  McGannon  case,  pushing  the  perjm-y  cases  grow- 
ing out  of  his  trial,  and  subsequently  forced  his  resignation.  It  influenced 
the  governor  to  appoint  a  new  chief  justice  of  its  own  choosing,  and  ac- 
tively campaigned  for  the  election  of  this  new  chief  justice  for  a  period  of 
years.  Its  recent  record  as  compared  with  city  bar  associations  in  gen- 
eral is  very  commendable. 

Yet  there  is  needed  a  more  powerful  organization  of  the  bar  than  any 
voluntary  association.  Dean  Pound  states:  ''The  possibilities  of  corpo- 
rate organization  have  been  shown  abundantly  in  the  experience  of 
incorporation  of  the  lower  branch  of  the  profession  in  England.  Bar 
associations  may  do  much.  Yet  membership  in  them  is  voluntary,  and 
the  officers  and  committees  of  these  associations  are  busy  men,  whose 
primary  responsibilities  are  to  their  clients  and  who  can  give  but  a  resi- 
due of  their  energies  to  professional  discipline.  .  .  .  The  plan  of  the 
American  Judicature  Society  for  corporate  organization  of  the  bar  de- 
serves to  be  studied  and  pondered  by  all  lawyers  who  have  the  good 
of  the  profession  and  the  improvement  of  the  administration  of  justice 
at  heart." 


THE  NEWSPAPERS  AND  CRIMINAL  JUSTICE 

In  the  course  of  the  survey  those  who  were  studying  the  poHce, 
prosecution,  and  the  criminal  courts  found  themselves  encountering 
the  newspapers  as  a  persistent  and  potent  factor  in  the  problems  studied. 
Public  officials,  lawyers,  and  private  citizens  all  regarded  the  press  as  an 
unescapable  factor  in  the  situation.  When  it  is  considered  that  from  6 
per  cent,  to  28  per  cent,  of  the  total  news  space  in  Cleveland  papers  is 
given  over  to  news  relative  to  the  administration  of  justice,  it  is  quite 
plain  that  the  nature  of  what  is  printed,  its  quality  and  underlying 
standards,  and  the  general  atmosphere  thereby  generated,  must  exert 
a  most  profound  influence  upon  those  who  administer  justice  and  upon 
public  opinion. 

Recognizing  this  importance  of  the  newspapers,  the  survey  em- 
ployed M.  K.  Wisehart,  an  experienced  journaUst,  to  make  a  study  of  the 
Cleveland  newspapers  in  their  relation  to  the  administration  of  criminal 
justice.  His  report,  while  not  in  any  sense  an  exhaustive  treatment  of 
the  subject,  clearly  establishes  certain  important  ways  in  which  the 
influence  of  the  newspapers  is  exerted  in  the  administration  of  criminal 
justice.  These  criticisms  are  somewhat  extensively  documented  by 
extracts  from  the  newspapers  themselves. 

Interference  by  Newspapers  in  Law  Enforcement 
The  most  common  form  which  this  takes  is  the  irresponsible  publica- 
tion of  statements  which  embarrass  the  official  detection  of  wrongdoing. 
Numerous  examples  are  given  of  publication  of  news  which  might  very 
easily  warn  criminals  of  plans  made  by  officials  for  their  arrest. 

The  Making  of  Atmosphere 

In  a  criminal  case  newspapers  have  the  power  to  create  atmosphere. 
Public  hostility  or  sympathy,  against  or  for,  an  accused  may  influence 
the  jury  in  its  determination  of  guilt.  Numerous  instances  are  cited  of 
the  selection  and  treatment  of  newspaper  material  in  a  style  plainly 
intended  either  to  condone  or  to  condemn  the  accused.  "Human 
interest  is  the  excuse :  corruption  of  the  community's  standards  may  be 
the  result." 

Another  kind  of  "trial  by  newspapers"  is  the  deliberate  printing  of 
signed  confessions  or  affidavits  in  connection  with  a  trial.  The  chief 
evil  of  this  is  that  it  exposes  the  prosecutor's  case  before  the  case  comes 
to  trial. 

[56  1 


"Crime  Waves" 

In  recent  years  the  phrase  "crime  wave"  has  been  invented,  and 
it  has  become  fixed  in  popular  behef  that  periodic  outbreaks  of  crime  are 
occurring.  In  order  to  determine  accurately  whether  the  great  increase 
in  crime  pubHcity  during  a  "crime  wave"  is  really  an  indication  of  a 
great  increase  in  crime,  a  study  was  made  by  the  survey  of  the  felonies 
reported  and  the  inches  of  news  space  in  four  weeks  of  January,  1919, 
a  month  which  witnessed  one  of  the  most  prominently  displayed 
"waves"  of  recent  years. 

The  net  result  of  the  study  shows  that  during  the  first  two  weeks 
345  felonies  were  reported  as  compared  with  363  during  the  last  two 
weeks — not  a  great  increase  in  crime.  But  during  the  first  two  weeks 
the  three  Cleveland  newspapers  gave  925  inches  to  crime  and  during 
the  last  two  6642.  Thus  what  actually  happened  was  a  "crime  news 
wave." 

Newspapers  often  sponsor  and  carry  through  reforms  marking  real 
improvements  in  the  administration  of  justice.  Some  newspaper  cam- 
paigns, however,  merely  secure  from  public  officials  a  seeming  response 
to  the  things  demanded. 

We  have  already  seen  the  effect  of  sensationalism  upon  the  caliber 
of  the  bench  itself.  The  judge  who  does  the  extraordinary  or  sensa- 
tional thing  is  advertised.  The  publicity  he  gets  insures  his  reelection 
regardless  of  the  real  merits  of  his  claim  to  another  term.  In  this 
striving  for  cheap  publicity  the  newspapers  constantly  lend  such  judges 
powerful  but  pernicious  assistance. 

THE  PUBLIC 

What  is  "The  Public"  in  Cleveland? 
A  cardinal  principle  in  the  philosophy  of  Dean  Pound  is  the  need  of 
radical  readjustment  of  legal  institutions  to  fit  the  changed  conditions 
of  modern  urban  life.  We  are  striving  to  meet  problems  peculiar  to 
modern  industrial  life  with  a  criminal  law  and  judicial  institutions  de- 
vised to  fit  rural  conditions  of  generations  ago.  This  need  of  readjust- 
ment is  especially  marked  in  Cleveland.  The  population  is  unstable; 
school  statistics  show  that  40  per  cent,  of  the  children  in  the  public 
schools  moved  during  the  year  1920-1921.  The  population  is  unstable 
and  cosmopolitan,  but  the  institutions  are  those  of  a  past  age. 

"The  ancestry  of  the  court  system  and  procedure  in  Ohio  goes  back  to  the 
Ordinance  of  1787,  which  was  passed  by  the  Continental  Congress  for  the  govern- 
ment of  the  Northwest  Territory.   This  represented  the  first  effort  in  this  country 

[57] 


to  set  up  a  judicial  structure  independently  of  the  British  crown — the  courts  of 
the  seaboard  states  having  all  been  developed  under  royal  governors.  It  was  the 
first  time  an  English-speaking  people  had  been  allowed  to  experiment  freely  with 
a  whole  body  of  law.  The  precaution  was  taken,  however,  to  forbid  the  legisla- 
tive arm  of  the  new  territory  to  pass  any  laws  not  in  effect  in  the  original  states. 
"General  Arthur  St.  Clair  and  his  group  of  circuit^riding  judges  of  common 
pleas,  restricted  as  they  were  in  the  letter  of  the  statute,  developed  a  sort  of 
rough-and-ready  forest  law.  The  Virginia  code  seems  to  have  been  their  model. 
To  members  of  the  survey  staff  of  the  Cleveland  Foundation  who  came  from 
New  England  there  were  like  unfamiliarities,  traceable  in  part  to  the  Virginia 
origins.  These  old  courts,  set  up  to  punish  offenses  against  the  peace  of  the 
forest  and  the  plantations  on  its  fringe,  have  been  attempting  in  latter  days  to 
pacify  urban  and  industrial  populations.  The  institutions  of  the  Old  Dominion, 
carried  into  the  wilderness  by  the  gentlemen  of  the  Ohio  Company,  now  con- 
stitute the  government  of  800,000  Clevelanders." 

Under  rural  conditions  the  population,  small  and  homogeneous,  could 
in  a  measure  keep  its  eyes  upon  the  administration  of  criminal  law  and 
enforce  a  degree  of  discipline  upon  the  public  official  which  insured  a 
fairly  adequate  administration  of  the  law.  Today  the  average  citizen 
of  Cleveland  knows  the  lawyers  and  judges  only  from  what  he  reads  in 
the  newspapers,  and  most  casually  from  his  experiences  in  the  courts  of 
litigation.  Under  such  a  handicap  the  judgment  of  the  average  citizen 
concerning  the  public  official  and  his  knowledge  of  what  is  going  on  is 
bound  to  be  scanty  and  confused. 

The  Need  of  Information  and  Leadership 
With  such  a  "public  opinion"  to  deal  with  there  is  need  of  strong 
civic  leadership.  The  survey  made  some  attempt  to  evaluate  this 
leadership.  It  found  a  number  of  agencies,  each  in  a  limited  degree  in- 
terested in  the  administration  of  criminal  justice.  The  Cleveland  Auto- 
mobile Club  watches  and  promotes  the  prosecution  of  criminal  cases 
involving  the  theft  of  automobiles;  the  Cleveland  Chamber  of  Com- 
merce, through  its  Safety  Council,  watches  traffic  cases,  and  through  its 
Retail  Merchants'  Board  the  prosecution  of  cases  of  fraud  and  shop- 
lifting involving  retail  merchants;  the  Humane  Society,  cases  involving 
children  and  animals;  the  Advertising  Club,  through  its  Better  Busi- 
ness Commission,  the  prosecution  of  "fake"  advertisements;  and  the 
Woman's  Protective  Association,  certain  cases  involving  women.  In 
addition  the  Civic  League  reports  upon  and  recommends  candidates  for 
office,  including  judges  and  prosecutors,  while  the  Bar  Association  takes 
a  poll  of  its  members  on  candidates  for  the  bench  and  publishes  the 

[581 


result.  But  these  agencies,  each  effective  in  a  limited  sphere,  do  not 
include  within  the  scope  of  their  interest  the  entire  problem  of  criminal 
justice. 

In  practicallj'^  all  the  reports  the  problem  of  improvement  came 
ultimately  to  the  need  of  an  informed  and  active  public  opinion.  Such 
an  opinion  should  not  operate  casually  as  in  the  past — deeply  concerned 
for  a  while  and  then  indifferent.  It  should  require  a  high  standard 
from  its  public  officials  and,  in  order  properly  to  measure  their  work, 
should  have  reliable  means  of  information. 

The  survey  was  intended  to  do  no  more  than  analyze  the  problem 
in  its  entirety,  to  point  out  the  essential  improvements,  and  to  show  the 
way  by  which  such  changes  can  be  brought  about.  More  important 
still,  it  had  an  educational  value.  It  was  intended  to  capture  public 
interest,  to  get  a  larger  niunber  of  people  to  think  simultaneously  about 
this  specific  problem,  and  to  use  this  public  interest  to  insure  a  perma- 
nent result.  Those  responsible  for  the  survey  could  afford  to  indulge 
a  quiet  bit  of  inward  amusement  when  the  cynics  said  "yes,  but  every- 
one will  soon  forget  it."  It  was  intended  from  the  beginning  not 
merely  to  rouse  interest,  but  to  use  an  aroused  interest  to  promote 
permanent  and  intelligently  directed  facilities  for  informing  and  leading 
public  opinion.  This  result  has  been  achieved  in  the  formation  of  the 
Cleveland  Association  for  Criminal  Justice. 


59] 


THE  CLEVELAND  ASSOCIATION  FOR  CRIMINAL 

JUSTICE 

THE  Cleveland  Bar  Association,  in  its  resolution  requesting  the 
Foundation  to  make  the  survey,  pledged  itself  not  only  to  co- 
operate in  the  making  of  the  survey,  but  to  aid  "in  bringing  about 
the  adoption  of  the  constructive  measures  recommended."  In  line  with 
this  pledge  the  Bar  Association,  after  the  survey  reports  had  been 
given  to  the  public,  selected  a  committee  "to  take  up  with  the  Cleveland 
Foundation  .  .  .  the  matter  of  establishing  an  organization  for  the 
promotion  of  efficient  administration  of  criminal  justice."  The  chair- 
man of  this  committee  was  Homer  H.  McKeehan. 

As  a  result  of  a  number  of  conferences  of  not  only  representatives  of 
the  Bar  Association  and  the  Foundation,  but  a  number  of  other  civic 
bodies,  there  was  formed  in  December,  1921,  the  Cleveland  Association 
for  Criminal  Justice. 

This  organization  is  an  association  of  the  great  civic  organizations  of 
the  city.  The  number  of  charter  members  is  13,  including  the  following 
organizations : 

The  Cleveland  Bar  Association 

The  Cleveland  Automobile  Club 

The  Cleveland  Chamber  of  Commerce 

The  Cleveland  Advertising  Club 

The  Cleveland  Academy  of  Medicine 

The  Cleveland  Real  Estate  Board 

The  Civic  League  of  Cleveland 

The  League  of  Women  Voters 

The  Women's  City  Club 

The  Cleveland  Builders  Exchange 

The  Cuyahoga  County  Council  of  the  American  Legion 

The  Cleveland  Chamber  of  Industry 

The  Industrial  Association 

Under  the  articles  of  the  association  each  of  these  organizations  elects 
two  members  of  the  board  of  directors,  with  an  additional  12  selected 
at  large.     This  board  of  directors  chooses  an  executive  committee  and 

[  60  ] 


the  officers  of  the  organization.  As  has  been  mentioned,  the  members 
of  the  association  are  organizations,  not  persons.  There  is,  however, 
provision  for  the  enlistment  of  smaller  civic  organizations,  such  as 
church  clubs,  as  auxiliary  members,  and  for  interested  individuals  as 
associate  members. 

Some  idea  of  the  scope  of  activities  of  the  organization  may  be  gained 
from  the  names  of  the  standing  committees : 

Police  Prosecution 

Juries  Courts 

Probation,  Parole,  Punishment  and  In-  Medical  Relations 

stitutions 

Finance  Public  Office  Administration 

Legislation  Publicity 

In  general  the  functions  of  the  association  will  be  as  follows : 

1.  To  exercise  a  constant  surveillance  upon  the  processes  of  justice, 
to  the  end  that  the  public  may  be  constantly  informed  as  to  conditions, 
both  good  and  bad,  which  exist  in  the  field  of  criminal  justice. 

2.  To  assist  those  in  authority  to  make  improvements,  where  de- 
sirable, in  the  organization  and  operation  of  the  agencies  of  criminal 
justice. 

The  association  has  assured  itself  of  financial  support  and  plans  to 
continue  for  an  indefinite  period  of  not  less  than  five  years.  As  operating 
director,  the  association  has  selected  Charles  De Woody,  who  took  office 
January  1,  1922. 

There  has  thus  been  created  an  agency,  backed  by  the  aggregate 
power  of  the  most  important  civic  organizations  (including  over  50,000 
individual  members),  to  represent  the  all-important  public  interest  in 
the  processes  by  which  life  and  property  are  protected  in  a  great  city. 

The  Association  for  Criminal  Justice  has  been  operating  since  Jan- 
uary 1,  1922.  While  thoroughgoing  changes  in  the  methods  and  ma- 
chinery of  criminal  justice  are  not  to  be  expected  so  soon,  there  are 
ample  indications  that  such  changes  are  under  way.  The  most  impor- 
tant service  of  the  association  must  be  that  of  maintaining  a  constant 
check  upon  the  administration  of  criminal  justice,  to  furnish  a  means  for 
an  intelligent  alert  public  appraisal  of  the  efficiency  of  law  enforcement. 
The  chief  means  through  which  this  will  be  done  by  the  Association  is 
through  its  card  index  protective  system. 

On  March  1,  1922,  the  association  began  the  operation  of  a  carefully 
worked-out  system  of  card  indexing  felonies.  It  is  possible,  through 
this  system,  to  determine  at  once  the  status  of  every  felony  and  major 

[61] 


crime  committed  in  the  county,  with  complete  information  as  to  the 
nature  of  the  offense,  the  person  or  persons  arrested,  the  injured  party, 
and  the  exact  status  of  the  prosecution.  It  also  records  every  bonds- 
man, with  essential  facts  concerning  him,  thus  bringing  automatically 
to  the  attention  of  the  association  the  **  professional  bondsman."  It 
thus  records  at  every  step  in  prosecution  the  name  of  the  judge,  the 
prosecutor,  the  attorney  for  the  defense,  and  any  other  official  who  par- 
ticipates in  a  case,  thus  permanently  fixing  responsibility  for  every 
action  in  every  felony  case.  There  is  no  other  one  office  in  the  courts 
or  police  department  where  complete  information  regarding  a  given  case 
can  be  obtained.     The  survey  found  in  every  division  of  its  investiga- 


EVERY  once  in  a  while  the  accumulation  of  miscarriages 
of  justice,  scandals,  and  unpunished  crimes  arouses  the 
community  and  it  institutes  a  special  grand  jury  in- 
vestigation or  a  specially  aggressive  newspaper  campaign  or  a 
survey,  and  then,  forgetting  that  the  accumulation  was  the 
inevitable  result  of  the  habitual  defects  in  the  machinery,  it 
turns  to  something  new,  whereupon  the  old  ways  go  on  toward 
the  next  inevitable  accumulation.  Unfortunately,  since  royalty 
and  autocracy  have  gone  out  of  fashion,  there  is  no  device  yet 
invented  whereby  the  public  can  leave  public  matters  entirely 
to  public  officials  and  at  the  same  time  get  the  results  which  it 
desires.  Continuous  public  check,  scrutiny,  reform,  praise, 
condemnation,  election,  discharge,  are  necessary. 

— Bettman,  Survey  Report 


tion  that  much  official  carelessness  and  favoritism  was  possible  because 
little  or  no  responsibility  could  be  fixed  in  a  given  case.  It  also  found 
that  the  police  court  parasites,  such  as  the  political  lawyer  and  the  pro- 
fessional bondsman,  were  dependent  for  existence  chiefly  upon  the 
assurance  that  they  would  leave  no  tracks  behind.  In  view  of  these 
facts  it  is  easy  to  see  the  great  significance  of  such  a  public  check  as  the 
card  index  system  worked  out  by  the  association.  It  makes  possible  the 
turning  of  the  curative  light  of  publicity  upon  all  the  dark  corners  in 
the  process  of  criminal  procedure. 

The  association,  through  its  director,  has  been  in  constant  contact 
with  judges,  prosecutors,  and  police  officials.    A  fine  spirit  of  cooperation 

[62  1 


has  been  shown  everywhere.  Many  important  changes  have  been  worked 
out  by  officials  with  the  cooperation  of  the  association.  One  noteworthy 
example  has  been  the  elimination  of  preliminary  hearings  in  felony  cases 
in  the  Municipal  Court.  The  survey  pointed  out  the  excessive  delay  in 
criminal  cases  caused  by  the  large  number  of  steps  in  the  process.  It 
indicated  that  in  1919  an  average  of  twenty-one  and  one-half  days 
elapsed  between  arrest  and  indictment.  Under  the  new  system  in  the 
month  of  March  this  was  reduced  to  six  and  three-quarter  days. 

Another  change  worked  out  with  the  cooperation  of  the  association 
has  been  the  promulgation,  by  the  chief  of  police,  of  regulations  provid- 
ing for  much  more  effective  assistance  by  the  police  to  prosecution  of 
cases. 

Other  Indications  of  More  Effective  Criminal  Justice 
A  number  of  marked  improvements  have  been  made  in  the  adminis- 
tration of  criminal  justice  which  may  or  may  not  be  the  result  of  the  sur- 
vey or  of  the  efforts  of  the  association.  They  are  in  any  event  the  prod- 
uct of  an  increased  public  interest  in  which  the  survey  played  some 
part.    The  most  important  of  these  are  as  follows : 

1.  In  December  the  Common  Pleas  judges  formed  a  new  probation 
department  for  their  court.  This  department  is  already  in  operation, 
with  a  fairly  adequate  staff  of  workers. 

2.  The  Bar  Association,  following  the  suggestion  of  the  survey,  con- 
ducted a  vote  among  its  members  as  to  whether  the  three  Common 
Pleas  judges,  whose  term  expires  this  year,  shall  be  continued  in  office. 
Following  this  balloting  the  Bar  Association  has  formed  a  committee 
actually  to  conduct  a  campaign  for  their  reelection,  thus  taking  from  the 
judges  the  burden  so  hurtful  to  the  dignity  and  efficiency  of  judges  of 
carrying  on  their  own  campaigns  single  handed.  The  Bar  Association  is 
already  in  the  process  of  forming  the  judicial  council  recommended  by 
the  survey. 

3.  The  prosecutors'  offices  have  been  greatly  improved,  both  in  per- 
sonnel and  in  business  methods.  The  new  city  administration  selected 
as  police  prosecutors  a  much  higher  type  of  men  and  have  insisted  upon 
more  and  better  service  from  them.  The  county  prosecutor  has  coop- 
erated heartily  with  the  association  and  has  immeasurably  increased  the 
efficiency  of  the  office. 

4.  The  grand  jury  now  in  operation  has  very  markedly  increased  the 
effectiveness  of  the  process  of  indictment. 

5.  While  it  is  always  dangerous  to  claim  a  marked  decrease  in  crime 
as  due  to  a  specific  cause,  it  is  nevertheless  incontestable  that  Cleveland 

[63  1 


has,  in  general,  since  January  1,  1922,  enjoyed  a  marked  decrease  in  the 
number  of  crimes  committed.  This  is  all  the  more  remarkable  when  the 
"crime  waves"  are  disturbing  the  security  of  other  cities,  notably  New 
York.  Cleveland  can,  we  believe,  rightly  claim  that  it  has  passed  through 
a  winter  without  a  "crime  wave." 


[64 


THE  COMPLETE  REPORT  OF  THE  CRIME  SURVEY 


CRIMINAL  JUSTICE  IN 
CLEVELAND 

THE  reports  summarized  in  this  pamphlet  are  pub- 
Hshed  in  a  single  volume  of  700  pages,  with  60 
statistical  tables,  17  diagrams,  and  13  illustrations; 
bound  in  cloth,  price,  $3.75. 

Sections  of  the  report  are: 

1.  Police  Administration.     By  Raymond  B.  Fosdick 

2.  The  Criminal  Courts.  By  Reginald  Heber  Smith  and 

Herbert  B.  Ehrmann,  both  of  the  Boston  Bar 

3.  Prosecution.  By  Alfred  Bettman,  formerly  city  solic- 

itor of  Cincinnati 

4.  Correctional  and  Penal  Treatment.     By  Burdette 

G.  Lewis,  state  commissioner  of  institutions  and 
agencies  in  New  Jersey 

5.  Medical  Science  and  Criminal  Justice.    By  Dr.  Her- 

ML-VN  M.  Adler,  state  criminologist  of  Illinois 

6.  Legal  Education  in  Cleveland.    By  Albert  M.  Kales, 

of  the  Chicago  Bar 

7.  Newspapers  and  Criminal  Justice.    By  M.  K.  Wise- 

hart,  newspaper  and  magazine  writer 

8.  Criminal  Justice  in  the  American  City.    By  Roscoe 

Pound 

Prices  of  separate  sections,  paper  bound:    1,  2,  3,  and  8,  $1  each; 
4  and  5,  50  cents  each;  6,  25  cents 


THE  CLEVELAND  FOUNDATION 

1308  Swetland  Building 
Cleveland,  Ohio 


OUR  Anglo-American  judicial  and  prosecuting  organiza- 
tion, criminal  law  and  criminal  procedure,  as  they  grew 
up  and  took  shape  in  the  fore  part  of  the  last  century, 
presuppose  a  homogeneous  people,  jealous  of  its  rights,  zealous 
to  keep  order,  and  in  sympathy  with  institutions  of  government 
which  it  understands  and  in  which  it  believes — a  people  which, 
in  all  matters  of  moment,  will  conform  to  the  precepts  of  law 
when  they  are  ascertained  and  made  known,  which  may  be  relied 
upon  to  set  the  machinery  of  the  law  in  motion  of  its  own  initia- 
tive when  wrong  has  been  done,  and  to  enforce  the  law  intelli- 
gently and  steadfastly  in  the  jury-box.  In  other  words,  they 
presuppose  an  American  farming  community  of  the  first  half  of 
the  nineteenth  century.  We  are  employing  them  to  do  justice 
in  a  heterogeneous,  diversified,  crowded  city  population,  con- 
taining elements  used  to  being  trodden  on  by  those  in  authorit}^, 
ignorant  of  our  institutions,  at  least  in  all  but  form,  with  good 
reason  suspicious  of  government  as  they  have  known  it,  and 
hence  often  imbued  with  distrust  of  all  government,  loath  to 
invoke  legal  machinery,  of  which  they  think  in  terms  of  the  social 
conditions  in  another  part  of  the  world,  and  inclined  to  think  of 
a  jury  trial  as  some  sort  of  man  hunt,  not  knowing  the  nature  of 
the  proceedings  that  have  gone  before  nor  appreciating  the  mani- 
fold guarantees  by  which  at  common  law  an  accused  person  is 
assured  every  facility  for  a  full  defense. 

— Dean  Roscoe  Pound 


_Jl 


_E£^PHLET  BINDEK 

~      -    Syracuse,  N.  y. 
■    Srockton,  Calif 


UC  SOUTHERN  REGIONAL  LIBRAR 


000  327  253 


